Opposition Brief — Rogers v. Tennessee

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No. 99-6218

IN THE

SUPREME COURT OF THE UNITED STATES

WILBERT K. ROGERS,

Petitioner,

Vv.

STATE OF TENNESSEE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF TENNESSEE

RESPONDENT’S BRIEF IN OPPOSITION

PAUL G. SUMMERS

— Attorney General & Reporter

—

425 Fifth Avenue North

| RECEIV ED State of Tennessee

DEC 2 2 1999 MICHAEL E. MOORE

HE CLERK Solicitor Genera

OFAC ue a | Counsel of Record

| = Office of the Attorney General

Nashville, Tennessee 37243

(615) 741-3226

COUNSEL FOR RESPONDENT

QUESTION PRESENTED FOR REVIEW

Whether the Tennessee Supreme Court's retroactive application of its

decision abolishing the common law “year-and-a-day rule” violated petitioner's due

process rights under the Fifth and Fourteenth Amendments of the United States

Constitution?

OPINION BELOW

The opinion of the Tennessee Supreme Court is published at 992 S.W. 2d

393 (Tenn. 1999). The order denying rehearing (Apx. 1) is unpublished.

STATEMENT OF JURISDICTION

The opinion of the Tennessee Supreme Court was filed on May 24, 1999.

The Tennessee Supreme Court denied a petition to rehear on June 21, 1999. Petitioner

invokes this Court's jurisdiction under 28 U.S.C. §1257(3).

STATEMENT OF THE CASE

In January, 1996, petitioner was convicted of second-degree murder and

sentenced to 33 years. (I. 34) The Tennessee Court of Criminal Agpeals affirmed the

conviction. State v. Wilbert K. Rogers (A.K.A. Person Rogers), No. 02C01-9611-CR-00418,

1997 WL 642309 (Tenn. Crim. App., filed October 17, 1997, at Jackson). On April 13,

1998, the Tennessee Supreme Court granted petitioner's Application for Permission to

Appeal. In an opinion dated May 24, 1999, the Tennessee Supreme Court abolished the

year-and-a-day rule and applied its decision retrospectively to petitioner's case.

STATEMENT OF THE FACTS

In May 1994, the defendant stabbed James Bowdery in the chest.

Bowdery staggered to the apartment of Dianna Reed, reported the stabbing, and lay

down on the couch. Reed called an ambulance.

Following the stabbing, Bowdery went into cardiac arrest. Before his heart

could be restarted and circulation reestablished, the defendant developed hypoxia of the

brain. Bowdery survived in a vegetative state until August 1995, when he died of a

kidney infection, a complication of the coma.

ARGUMENT

THE TENNESSEE SUPREME COURT PROPERLY CONCLUDED

THAT THE RETROSPECTIVE APPLICATION OF THE ABOLISHMENT OF THE

YEAR-AND-A-DAY RULE DID NOT VIOLATE PETITIONER'S DUE PROCESS

RIGHTS.

Petitioner argues that the Tennessee Supreme Court’s retrospective

application of its decision abolishing the common law year-and-a-day rule violated his

due process rights under the Fifth and Fourteenth Amendments. To the contrary, the

Supreme Court's abrogation of the year-and-a-day rule was not an unforeseeable judicial

enlargement of a criminal statute; therefore, the retrospective application of the decision

was proper.

The Ex Post Facto Clause of the United States Constitution is a limitation

upon the powers of the legislature, see Calder v. Bull, 3 Dall. 386 (1798), and does not

apply to the judicial branch. Frank v. Magnum, 237 U.S. 309, 344 (1915). However,

this Court has held that the Fifth and Fourteenth Amendments forbid retroactive

application of an unforeseeable judicial modification of criminal law to the disadvantage

of the defendant. Marks v. United States, 430 U.S. 188, 191-92 (1977); Bouie v. City of

Columbia, 378 U.S. 347 (1964); Rose v. Locke, 423 U.S. 48 (1975)

In Bouie, the defendants were convicted of trespassing after refusing to leave

2

a restaurant when an employee of the store posted a “no trespassing” sign. Bouie, supra

at 348. The statute under which the defendants were charged defined trespass as “entry

upon the lands of another ... after notice from the owner ... prohibiting such entry.” Id

at 351-352. The South Carolina Supreme Court, in affirming the defendants’

convictions, interpreted the statute to proscribe remaining on the premises after being

told to leave, as well as entering the premises after being notified not to enter. Id at 350.

In this Court the defendant's argued that they were denied due process of law because

the interpretation of the statute under which they were convicted punished them for

conduct that was not criminal at the time they committed it, thereby depriving them of

fair warning of the conduct the statute prohibited. Jd at 350. This Court reversed the

defendants’ convictions, finding that they had indeed been denied due process of law by

the South Carolina Supreme Court's interpretation of the statute. The Court found that

the defendants “were given no warning whatever” that the conduct in which they had

engaged violated the statute. /d at 355, 362. The Court opined that it was “a basic

principle that a criminal statute must give fair warning of the conduct that it makes a

crime” and that “a deprivation of fair warning can result not only from vague statutory

language but also from an unforeseeable judicial expansion of narrow and precise

statutory language.” Jd at 352.

In Marks the defendants were charged with transporting obscene materials

in interstate commerce. Marks, supra at 189. Between the time that the defendants were

charged with the offense and the trial, this Court decided Miller v. California, 413 U.S.

15 (1973), which announced new standards for interpreting obscenity laws. The

defendants argued in the district court that they were entitled to jury instructions under

the more favorable definition of obscenity that existed prior to this Court's opinion in

Miller. Id at 190. The district court overruled the defendants’ objection and instructed

the jury under the Miller standard. Id at 191. This Court held that the test announced

in Miller could not be applied to the defendants because their acts were committed

before the Court had announced the Miller test and those standards “imposed criminal

liability for conduct not punishable [previously].” Jd at 196.

In this case, the Tennessee Supreme Court properly determined that their

decision to abolish the year-and-a-day rule could be applied retroactively because it was

not a “judicial construction of a criminal statute [that] is unexpected and indefensible

by reference to the law which has been expressed prior to the conduct in issue”. State

v. Rogers, 992 S.W.2d 393, 402 (citing Bouie, supra, at 354) The court noted that the

year-and-a-day rule had never been a ground of any decision in Tennessee and had only

been mentioned once by the state appellate courts since 1907. Id. It also cited the fact

that the rule had been abolished judicially or legislatively in many other jurisdictions,

and had been called into question by the adoption of the 1989 Criminal Code, which

in defining homicide did not include a reference to the year-and-a-day rule. Id.

An objective of the 1989 Criminal Code was to “give fair warning of what

conduct is prohibited, and guide the exercise of official discretion in law enforcement,

by defining the act and culpable mental state which together constitute the offense.”

Tenn. Code Ann. § 39-11-101(2). It provided that “conduct does not constitute an

offense unless it is defined as an offense by statute, municipal ordinance, or rule

authorized by and lawfully adopted under a statute.” Tenn. Code Ann. § 39-1 1-102.

The Sentencing Commission Comments specifically state that “it is the intent of the

commission that common law offenses be replaced with statutory offenses to effect the

goals set forth in § 39-11-101(1) and (2).”

The 1989 Criminal Code defines criminal homicide as: “the unlawful killing

of another person which may be first degree murder, second degree murder, voluntary

manslaughter criminally negligent homicide, or vehicular homicide.” Tenn. Code Ann.

§ 39-13-201. The year-and-a-day rule is not mentioned.

Additionally, the retroactive application of the abrogation of the year-and-

a-day rule does not implicate the same notice concerns that this Court enunciated in

Bouie and its progeny. Clearly, in this case, the defendant was aware that his conduct,

i.e. killing another human being, was proscribed by the statute. Accordingly, this case

is not controlled by Bouie or Marks, where the defendants were not on notice that the

conduct in which they were engaged was proscribed by the criminal law and where the

courts in question had expanded narrow and precise criminal laws to include the conduct

of the defendants.

The defendant was not deprived of fair warning that the conduct in which

he was engaged was criminal, therefore, he was not deprived of his due process rights

when the Tennessee Supreme Court retroactively applied its decision to abolish the year-

and-a-day rule.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

PAUL G. SUMMERS

Attorney General & Reporter

State of Tennessee

What § Prem

MICHAEL E. MOORE

Solicitor General

Counsel of Record

Ofiice of the Attorney General

425 Fifth Avenue North

Nashville, Tennessee 37243

(615) 741-3226

COUNSEL FOR RESPONDENT

CERTIFICATE OF SERVICE

1 hereby certify that a copy of the foregoing document has been

furnished to all parties required to be served in this cause by delivering a true and

exact copy to the office of counsel of record shown at the address below by placing

a copy in the U.S. mail, first-class, postage prepaid, on the 21st day of December,

1999,

W. Mark Ward

Suite 2-01

201 Poplar

Memphis, Tennessee 38103

(901) 545-5800

Write ¢. Guo

MICHAEL E. MOORE

Solicitor General

Counsel of Record

APPENDIX NO. |

IN THE SUPREME COURT OF TENNESSEE

STATE OF TENNESSEE,

Appellee,

v

WILBERT K. ROGERS,

Appellant.

AT JACKSON

) NOT FOR PUBLICATION

)

) SHELBY CRIMINAL

)

) NO. 02S01-9804-CR-00035

)

)

)

)

ORDER

The appellant has filed a petition for rehearing in this appeal pursuant to

Tenn. R. App. P. 39. We have considered all of the arguments raised in the petition, and

we have found them to be without merit. It is, therefore, ORDERED that the petition is

denied.

~ PER CURIAM

@:: OF TENNESSEE

Office of the Attorney General

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PAUL G. SUMMERS

ATTORNEY GENERAL AND REPORTER

ANDY DO. BENNETT MICHAEL E&. MOORE

CHIEF DEPUTY ATTORNEY GENERAL SOLICITOR GENERAL

LUCY HONEY HAYNES CORDELL HULL BUILDING

ASSOCIATE CHIEF DEPUTY NASHVILLE, TN 37243-0465

ATTORNEY GENERAL

December 21, 1999 TELEPHONE (615) 741-3401

FACSIMILE (616) 741-2009

Honorable William K. Suter

Clerk of the Court

Supreme Court of the United States

One First Street, N.E.

Washington, D.C. 20543

RE: Wilbert K. Rogers v. Tennessee, No. 99-6218

Dear Mr. Suter:

On December 17, 1999, the State filed it brief in opposition to the Petition for

Writ of Certiorari in Wilbert K. Rogers v. State of Tennessee. It came to my attention today

that, following my final review of the brief, the citation in Bouie v. City of Columbia, 378

U.S. 347 (1964) was erroneously altered throughout the brief. I have made the

appropriate changes and respectfully request that you substitute the enclosed briefs for

those previously submitted.

Sincerely,

MICHAEL E. MOORE

Solicitor General

Counsel of Record

Office of the Attorney General

RECE| VED 425 Fifth Avenue North

DEC Nashville, Tennessee 37243

2 2 1999 (615) 741-3226

OFFICE O¢ THE ¢

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