Reply Brief — Tennessee v. Street

Supreme Court, U.S.

FILED

FOR ARGUMENT ,

No. 83-2143 MAR 11 1985

—KUESAEOER .. STEVAS 7

CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1984

STATE Or TENNESSEE,

Petitioner,

vs.

Harvey J. STREET,

Respondent.

On Writ of Certiorari to the Court Of

Criminal Appeals Of Tennessee At Knoxville

REPLY BRIEF FOR THE PETITIONER

W. J. MicHAEL Copy

Attorney General of Tennessee

Counsel of Record

RoBert A. GRUNOW

Associate Chief Deputy

Attorney General

Wayne E. UHL

Assistant Attorney General

J. ANDREW Hoya_ II

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219

(615) 741-7087

Counsel for Petitioner

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477

TABLE OF CONTENTS

Page

Argument In Response To Brief For The Respondent .. |

A. The Factual Circumstances Of This Case Far

Remove It From Those Presented In Douglas

And Bruton, Compelling A Different Result . l

B. Introduction Of The Entire Text Of Peele’s

Confession Was The Only Effective Method

Of Impeaching The Parroting Claim ........ 7

C. Use Of The ‘‘Sword-Shield’’ Principle Is Not

Inappropriate In The Instant Case.......... 9

D. The Decision Of The Court Of Criminal Ap-

peals Was Not Based On An Adequate And

Independent State Ground ................ 10

I obs od od cence eu cendunsdbeseeusceece 13

TABLE OF, AUTHORITIES

Page

Cases:

Anderson v. Harless, 459 U.S. 4(1982)............... 11

Briggs v. State, 501 S.W.2d 831 (Tenn. Crim. App.

Dhak oth Cie chiehdeh sndveneeneensensne 12

Bruton v. United States, 391 U.S. 123 (1968) .......... passim

California v. Green, 399 U.S. 149(1970) ............. 9

Douglas v. Alabama, 380 U.S. 415 (1965)............. passim

Dutton v. Evans, 400 U.S. 74(1970) ............045. “ 9

Elliott v. Thompson, 599 F.2d 767 (6th Cir.), cert.

Gonted, 466 US. TaB Gees oc nccncchesasuanean 11,12

Farmer v. State, 201 Tenn. 107, 296 S.W.2d 879 (1956) . 4

Harrington v. California, 395 U.S. 250 (1969) ......... 11

Michelson v. United States, 335 U.S. 469 (1948) ....... 10

Michigan v. Long, 463 U.S. ___, 103 S.Ct. 3469 (1983) 12

Miranda v. Arizona, 384 U.S. 436 (1966) ............. 10

Nash v. United States, 54 F.2d 1006 (2d Cir. 1932) ..... 5

Ohio v. Roberts, 448 U.S. 56 (1980) ................. 9

O’Neil v. State, 2 Tenn. Crim. App. 518, 455 S.W.2d

i Ter 12

Oregon v. Hass, 420 U.S. 714(1975) ................. 10

Parker v. Randolph, 442 U.S. 62 (1979) .............. 5,11

State v. Elliott, 524 S.W.2d 473 (Tenn. 1975).......... 1!

Constitution and Statute:

U.S. Constitution, Amendment VI.................. passim

Tenn. Code Ann. § 39-2-202(a) ................0005- 4

Other Authority:

I WIGMORE ON EVIDENCE § 13 (Tillers rev. 1983) . . 5

No. 83-2143

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

}

STATE Or TENNESSEE,

Petitioner,

vs.

Harvey J. STREET,

Respondent.

On Writ of Certiorari to the Court Of

Criminal Appeals Of Tennessee At Knoxville

REPLY BRIEF FOR THE PETITIONER

ARGUMENT IN RESPONSE TO

BRIEF FOR THE RESPONDENT

A. The Factual Circumstances Of This Case Far Remove It

From Those Presented In Douglas And Bruton, Compelling A

Different Result.

In both Bruton v. United States, 391 U.S. 123 (1968), and

Douglas v. Alabama, 380 U.S. 415 (1965), the Court concluded

that the codefendants’ confessions were so ‘“‘crucial’’ and

‘*devastating”’ that the juries in those cases could not be expected

to ignore the confessions in determining the guilt of the non-

confessing defendants. Thus, notwithstanding limiting instruc-

tions or technical evidentiary rules, the confessions were deemed

to have been considered for the truth of the matters asserted

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therein. At that point, in the factual contexts of Bruton and

Douglas, the principies of the Confrontation Clause came into

play.

The respondent in his brief addresses at length the ‘‘principles

of confrontation,’’ including availability of the out-of-court

declarant, reliability of the declarant’s statement, and utility of

cross-examination. This discussion necessarily and incorrectly

assumes that the jurors in the instant case disregarded the

limiting instructions of the trial judge and considered Peele’s

statement for its truth. On this point, the respondent asserts

that ‘‘[t]here is . . . no relevant distinction between the instant

situation and Bruton that would allow for a different result in

the two cases.’’ Brief for the Respondent at 14. The respondent

also relies heavily on Douglas as a controlling precedent, as did

the Court of Criminal Appeals.

The State has no argument with the respondent’s discussion

of ‘confrontation principles,’’ nor do we contest their ap-

plicability in cases like Bruton and Douglas where there is a

substantial risk that the codefendant’s confession will be im-

properly considered for its truth. However, we seriously ques-

tion the respondent’s attempt to extend the Bruton and Douglas

holdings far beyond the unique facts of those cases, on the

threshold issue of whether, in this case, ‘‘[i]t is not unreasonable

to conclude that . . . the jury can and will follow the trial judge’s

instructions ....’’ Bruton, 391 U.S. at 135.

To answer the respondent’s assertions about the ability of the

jury to limit its consideration of Peele’s confession, and

therefore the applicability of the Confrontation Clause, we will

recapitulate the key factual distinctions between this case and

Bruton and Douglas.

1. Unlike the defendants in Bruton and Douglas, Street had

already ‘‘devastated’’ his alibi defense by his own ‘‘powerfully

incriminating’ confessions and statements, which included his

admissions that he helped to plan the burglary, that he knew

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that the ‘‘whipping”’ of the victim was a possibility, that he will-

ingly participated in the burglary, that he was in the back of the

truck when the victim was hanged, and that he had placed at

least one of the loops of rope over the victim’s head. (J.A. 75,

305, 353-358.)

The respondent counters that Peele’s confession ‘‘portrayed

Street as a principal actor and as a willing participant in the kill-

ing’’ as opposed to Street’s claim that he was a mere accomplice

and a somewhat reluctant participant. Brief for the Respondent

at 42.' This is a far cry from the codefendants’ confessions in

Bruton and Douglas, which by themselves contributed critical

elements to the prosecution cases.’ Street’s confessions, on the

other hand, had already supplied a firm factual basis for a find-

ing that he had at least aided and abetted premeditated first-

degree murder, and the possibility that he had done so without

reluctance or that he had been ‘‘more a principal actor’’ can

hardly be considered to have been ‘‘devastating’’ to his case.’

Moreover, the respondent has ignored the fact that he could

have been found guilty on a felony murder theory, based simply

' In arguing this point, the respondent notes that Peele’s confession

‘indicated that Street helped place the rope around Tester’s neck . . .

.”’ The respondent apparently has forgotten, as did the Court of

Criminal Appeals, Street’s June 27, 1982 confession in which he ad-

mitted placing a loop of rope around the victim’s neck. (J.A. 74-76.)

? The codefendant’s confession in Douglas was the only evidence

that Douglas had actually fired the gunshot wounding the victim. 380

U.S. at 417. The codefendant’s confession in Bruton appears to have

been the only direct evidence that Bruton participated in the robbery.

391 U.S. at 124.

> As has been noted, Brief for the Petitioner at 2 n. 1, there was only

one possible punishment for first-degree murder in this case,

eliminating the possibility that mitigating circumstances could affect

the jury’s sentence. The respondent has never argued, nor could he do

so convincingly, that his confession left open the possibility of a lesser

degree of homicide.

—

on his participation in the burglary and without regard to the

role he played in the killing itself.‘

2. Also unlike the defendants in Bruton and Douglas, Street

further minimized the potential impact of Peele’s confession by

informing the jury of its existence and of the fact that Peele had

implicated Street in the murder. Defense counsel did so as early

as the opening statement (R. III, 136), and Street reaffirmed it

in his testimony (J.A. 190).

It seems intuitively true that most (if not all) of the impact of

an accomplice’s confession lies in the mere fact that the ac-

complice has named the defendant, particularly where the

defendant claims alibi; the details of the confession are relative-

ly insignificant, at least with respect to the defendant’s guilt or

innocence. With Street’s revelation that Peele had confessed

and named Street as an accomplice, the primary impact of

Peele’s confession was a fait accompli. The jurors, not surprised

to discover that Peele had implicated Street, could more easily

concentrate on the real import of the text of Peele’s confes-

sion, i.e., whether it supported or belied Street’s parroting

claim.

The respondent argues that because he had challenged the

voluntariness of his confession and raised an alibi defense, the

substance of Peele’s confession was all the more ‘‘devastating.”’

Brief for the Respondent at 38-40. But it was Street who chose

to stand or fall on the terms of Peele’s confession, assuming the

risk that his parroting claim would be legitimately ‘‘devastated”’

or ‘‘prejudiced’’ when the true terms of Peele’s confession were

revealed to the jury.’ Thus this case can be fairly distinguished

‘ Interpretations of Tennessee’s felony murder statute, Tenn. Code

Ann. § 39-2-202(a), have generally followed traditional principles of

felony murder. See Farmer v. State, 201 Tenn. 107, 114-117, 296

S.W.2d 879, 883-884 (1956).

* As this point illustrates, it was Street who wanted to ‘“‘have his

cake and eat it too,”’ asking the jury to believe his parroting claim but

eee ay them from examining the best evidence of the veracity of

at claim.

on then

from those more routine cases in which a challenge to volun-

tariness does not bring into issue the very terms of an ac-

complice’s confession.°

3. Another distinction between this case and Bruton, as noted

in our main brief, is the fact that the jury could properly con-

sider Peele’s confession against Street under state evidentiary

law, albeit for a limited purpose. The presumption that jurors

are able to so limit their consideration of evidence is hardly

novel, see 1 WIGMORE ON EVIDENCE § 13 (Tillers rev.

1983), and in fact is an underlying premise of the hearsay rule

and other standards of evidence.

The respondent insists that it is just as difficult for jurors to

limit their consideration of such evidence, Brief for the Respon-

dent at 37-38, and again we must rely on intuition and human

experience to analyze this claim. In Bruton, as well as in Nash

v. United States, 54 F.2d 1006, 1006-1007 (2d Cir. 1932), the

jurors were asked to use the evidence for two different purposes

at different times in their joint deliberations; to consider the

truth of the confession as to one defendant and to ignore it

altogether as to the other. In the instant case, however, the

jurors were required to use the evidence for a single purpose,

evaluation of the parroting claim, throughout their considera-

tion of the case. A presumption that jurors are unable to per-

form this simple task would have far-reaching consequences for

the jury system as it now exists.

4. The manner of the introduction of the accomplice’s confes-

sion provides another critical distinction between this case and

Bruton or Douglas. In both of those cases the codefendants’

confessions were placed before the jurors during the prosecu-

* Even if the plurality opinion in Parker v. Randolph, 442 U.S. 62

(1979), could be read to have limited its scope by its comment about a

defendant’s ‘“‘unchallenged’’ confession, id. at 73, the distinction has

no application in a case where, as here, the defendant has called into

issue the terms of his accomplice’s confession, thereby informing the

jury of its existence.

—

tion’s case in chief, along with other proof of the elements of

the crime and the guilt of the defendant. In the instant case, on

the other hand, Peele’s confession was part of the State’s rebut-

tal proof, emphasizing to the jurors that the confession was to

be considered only as it impeached Street’s parroting claim.

In addition, as has been pointed out by the United Stetes as

amicus curiae, Brief for the United States at 17-19, the pro-

secuting attorneys carefully focused both the examination of

Sheriff Papantoniou and their closing arguments on the minor

discrepancies that belied Street’s parroting claim, and not on

the incriminating naiure of Peele’s confession.

Finally, the trial court instructed the jury three times to limit

its consideration of Peele’s confession. While the respondent

has declined to challenge the sufficiency of these instructions,

Brief for the Respondent at 13 n. 6, it should be stressed that in

each instance the court instructed the jurors not to consider

Peele’s statement for the truth of the matters asserted therein.

(J.A. 292, 293, 350.)

5. Thus it can be seen that the factual differences between this

case on the one hand, and Bruton and Douglas on the other,

compel the conclusion that the jurors in the instant case could

reasonably be expected to consider Peele’s confession only for

impeachment purposes, and not for the truth of the matters

asserted therein. And once that conclusion has been reached,

the respondent’s contentions about availability, reliability, and

the utility of cross-examination are irrelevant. Since it was the

terms of Peele’s confession, and not its truth, that was before

the jury, nothing said by Peele himself could assist the jury in its

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evaluation of the parroting claim, and there is no confrontation

concern.’

B. Introduction Of The Entire Text Of Peele’s Confession

Was The Only Effective Method Of Impeaching The Parroting

Claim.

The respondent suggests throughout his brief that the reading

of the entire text of Peele’s confe..ion was not necessary to ac-

complish the State’s purpose, impeachment of Street’s par-

roting claim. He specifically puts forward three alternatives.

First, of course, the respondent asserts that Peele’s confes-

sion should not have been introduced at all, since the State had

already accomplished its impeachment through cross-

examination of Street and the presentation of witnesses who

were present at Street’s confession. Brief for the Respondent at

16-17, 22-23. This argument is self-defeating, for if the State

had so convincingly impeached Street, his guilt became a

foregone conclusion, and it is difficult to see how Peele’s con-

fession could have made any difference, much less be

**devastating.’’ In any event, the State’s witnesses all had vested

interests in the outcome of the trial, and the State was entitled to

resolve the ‘‘swearing contest’’ by introducing the best evidence

of the veracity of the parroting claim, Peele’s confession.

Second, the respondent suggests that Peele’s confession could

have been edited by substituting the term ‘‘another fellow’’ for

all of the names of individuals besides Peeie. Brief for the

’ With respect to the nonissue of availability, we do not understand

the respondent’s indignation over the Solicitor General’s reference to

the reasons that Peele was not called by the State at trial, reasons

which were well known to all of the parties. See Brief for the United

States at 2 n. 1; Brief for the Respondent at 16 n. 7, 20 n. 11, 24-25. It

is plain to us that the Solicitor General was not attempting to justify

Peele’s absence by asserting that he was “‘unavailable,’’ but instead

was making the opposite point that Peele was equally available to both

sides. See Brief for the United States at 24.

—

Respondent at 25-26. Putting aside the respondent’s failure to

make such a suggestion in the state courts, this device would not

have been effective to reduce the risk of improper inference by

the jury. For example, Street had asserted in his confession of

September 17, 1982 that he put the gag in the victim’s mouth,

Peele and Montgomery carried the victim out of the house,

Street was in the truck with Peele while Montgomery climbed

into the tree, and Peele placed the rope around the victim’s neck

after Montgomery handed the rope down from the tree. (J.A.

358.) Peele’s confession, as redacted, would have stated in per-

tinent part (J.A. 302):

Another fellow and | lifted Ben Tester up. Another fellow

had a piece of cloth, white, that he gagged Ben Tester with.

When the other fellow gagged Ben Tester he tied the knot

behind his head. . . . Another fellow and | got Ben Tester

by the shoulders. Two other fellows got him by the feet.

We four picked Ben Tester up and carried him out the

front door. . . . We laid Ben Tester down on the tailgate.

Another fellow and | got up in the truck bed. Two other

fellows climbed up in the tree. Another fellow handled the

rope . . . and tied it off with a knot. . . . Another fellow

and I put the loops around Ben Tester’s head and down

around his neck. Another fellow and | lifted Ben Tester off

the tailgate. . . . Two other fellows got out of the tree.

No reasonable juror would be fooled by such a redaction, con-

cluding for example that Street was Peele’s assistant in the hang-

ing since the other two fellows (whom the juror knows to have

been Montgomery and Causby, per Street’s confession) were

still in the tree. Indeed, it seems that the greater danger is that a

juror might assume that Street was the ‘‘other fellow’’ more

often than he really was, to Street’s prejudice.

Finally, the respondent suggests that the trial court could

have redacted from Peele’s confession only those portions

which ‘‘seriously inculpated Street,’’ pointing out seven items

i @-on

absent from Peele’s confession but present in Street’s. Brief of

the Respondent at 26-27. Of course, as we have argued, none of

Peele’s confession was ‘“‘seriqusly inculpatory’’ in light of

Street’s own admissions. But in any event, this approach over-

simplifies the task of comparing and contrasting the two lengthy

confessions, and leaves open to dispute which portions of

Peele’s confession were ‘‘seriously inculpatory’’ of Street. Fur-

thermore, some of the most crucial differences (impeaching

Street’s parroting claim) involved the execution of the murder

itself.

C. Use Of The ‘‘Sword-Shield’”’ Principle Is Not Inap-

propriate In The Instant Case.

To emphasize the inequity of Street’s defensive technique, we

noted in our main brief this Court’s holdings which prohibit a

defendant in certain circumstances from using his or her con-

Stitutional rights to pervert the truth-finding function of a

criminal trial. Brief of the Petitioner at 18-20. The

respondent’s attack on this analogy to the ‘‘sword-shield’’ prin-

ciple does not withstand analysis. See generally Brief of the

Respondent at 18-22.

First, the respondent suggests that, like the ban on coerced

statements, confrontation is an absolute right which can never

be waived or restricted. This suggestion, however, flies in the

face of the flexible approach the Court has taken toward the

Confrontation Clause in cases such as Dutton v. Evans, 400

U.S. 74 (1970), California v. Green, 399 U.S. 149 (1970), and

Ohio v. Roberts, 448 U.S. 56 (1980).

Second, the respondent asserts that the ‘‘sword-shield’’ prin-

ciple applies only in cases where a constitutional right has been

fashioned into a prophylactic rule of evidence, without regard

= Pe

for the truthworthiness of the evidence.* This is simply not

true. Consider, for example, the following language from

Michelson v. United States, 335 U.S. 469, 479 (1948), which

discussed when the prosecution may use character evidence

against a defendant:

The price a defendant must pay for attempting to prove his

good name is to throw open the entire subject which the

law has kept closed for his benefit and to make himself

vulnerable where the law otherwise shields him.

Regardless of these technical matters, the most compelling

reason for reversal of this case rernains: It is inherently in-

equitable, and damaging to the truth-finding process, to allow a

defendant such as Street to cali into issue the terms of a docu-

ment, literally inviting comparison, but then to permit him to

prevent revelation of the document to the jury on the ground

that he cannot irrelevantly confront its author.

D. The Decision Of The Court Of Criminal Appeals Was Not

Based On An Adequate And Independent State Ground.

The respondent asserts that the decision of the Court of

Criminal Appeals, to the extent that it is based on the “‘in-

terlocking confessions doctrine,”’ is somehow based on an ade-

quate and independent state ground, depriving this Court of

jurisdiction. Brief for the Respondent at 29-32. This argument

* The respondent suggests that “‘shields’’ such as that provided by

Miranda v. Arizona, 384 U.S. 436 (1966), ‘“‘notably do not enhance,

and in fact are frequently hostile to, the quest for truth.”” Brief for the

Respondent at 21. This is a surprising assertion in light of the follow-

ing language in Miranda, 384 U.S. at 466:

That counsel is present when statements are taken from an in-

dividual during interrogation obviously enhances the integrity of

the fact-finding processes in court.

Significantly, the Miranda violation in Oregon v. Hass, 420 U.S. 714

(1975), was the failure to provide a requested lawyer.

\

reflects a misunderstanding of the ‘‘interlocking confessions

doctrine,’’ as well as a misreading of Tennessee cases on the

point.

As explained by the plurality opinion in Parker v. Randolph,

442 U.S. 62 (1979), a determination that a codefendant’s con-

fession ‘‘interlocks’’ with the defendant’s is nothing more than

a determination that the codefendant’s confession is not

“‘devastating’’ under Bruton, which is what the State has at-

tempted to demonstrate here and in the lower court. Therefore

any treatment of the issue must rely on Bruton and its

parameters, or on cases which hold a state’s constitutional con-

frontation guarantee to provide protections similar to or greater

than the Sixth Amendment as interpreted in Bruton.

The firm federal constitutional basis for the decisions of Ten-

nessee courts on this issue is unmistakable. The Court of

Criminal Appeals in the instant case relied heavily on Bruton

and Douglas in determining whether a confrontation violation

occurred (Pet. App. at A-8 - A-10), and made no reference

whatsoever to the Tennessee Constitution. The court turned

next to this Court’s opinions in Parker, but finding no guidance

then turned to the opinion of the Tennessee Supreme Court in

Siate v. Elliott, 524 S.W.2d 473 (Tenn. 1975).

It is difficult to understand how Elliott could be read as

anything but an attempt to determine the parameters of Bruton.

In its discussion of the confrontation problem, 524 S.W.2d at

477-478, the Elliott court mentioned only the federal constitu-

tional confrontation provision, and referred to the ‘‘Bruton

rule’’ no less than five times. When the court finally reached a

harmless error finding, furthermore, it cited only this Court’s

opinion in Harrington v. California, 395 U.S. 250 (1969).°

* It is interesting to note that the Court of Appeals for the Sixth Cir-

cuit, in reviewing Otis Elliott’s habeas corpus claim, also characteriz-

ed the Tennessee Supreme Court’s decision as having been based on

Bruton. Elliott v. 599 F.2d 767, 769-770 (6th Cir.), cert.

denied 444 U.S. 932 (1979). Apparently there was no question that

Elliott had ‘‘exhausted”’ the federal constitutional claim. See Ander-

son v. Harless, 459 U.S. 4 (1982).

aie

Examination of the two state cases cited in Elliott confirms

the federal basis for Tennessee’s decisions on the subject. The

court in O’Neil v. State, 2 Tenn. Crim. App. 518, 529-532, 455

S.W.2d 597, 602-604 (1970), based its discussion of the confron-

tation problem in that case solely on Bruton and the Sixth

Amendment, as did the court in Briggs v. State, 501 S.W.2d

831, 835 (Tenn. Crim. App. 1973). We are aware of no Ten-

nessee case that even cites to the applicable state constitutional

provision in a Bruton-type situation, much less any suggestion

that the Tennessee Constitution might provide an independent

basis for a stricter application of the ‘‘interlocking confessions

doctrine.’’'°

Under these circumstances, it is obvious that the lower court

decision in this case ‘‘fairly appears to rest primarily [if not ex-

clusively] on federal law . . ..”’ Michigan v. Long, 463 U.S.

: , 103 S.Ct. 3469, 3476 (1983). Therefore the jurisdic-

tion of this Court is clearly established.

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CONCLUSION

The judgment of the Court of Criminal Appeals of Tennessee

should be reversed.

Respectfully submitted,

W. J. MICHAEL CODY

Attorney General of Tennessee

ROBERT A. GRUNOW

Associate Chief Deputy Attorney

General

WAYNE E. UHL

Assistant Attorney General

J. ANDREW HOYAL II

Assistant Attorney General

450 James Robertson Parkway

Nashville, Tennessee 37219-5025

(615) 741-7087

Attorneys for Petitioner