Opposition Brief — Jordan v. Mississippi

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Office-Supseme Court, US.

84- 17830 FILED

WEL 22 1985

ALEXANDER L. STEVAS,

CLERK

NO. 84-1738

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1984

RICHARD GERALD JORDAN,

Petitioner

vs.

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

BRIEF IN OPPOSITION

EDWIN LLOYD PITTMAN

ATTORNEY GENERAL

STATE OF MISSISSIPPI

MARVIN L. WHITE, JR.

SPECIAL ASSISTANT ATTORNEY GENERAL

(Counsel of Record)

AMY D. WHITTEN

SPECIAL ASSISTANT ATTORNEY GENERAL

Post Office Box 220

Jackson, Mississippi 39205

Telephone: (601) 359-3680

Attorneys for Respondent

~ BEST AVAILABLE COPY '

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR

HARD COPY AT THE TIME OF FILMING.

IF AND WHEN A BETTER COPY CAN BE

OBTAINED, A NEW FICHE WILL BE

ISSUED.

QUESTIONS PRESENTED

a where hearsay evidence relating to

post crime nrison behavior is excluded on the

grounds) of it being incompetent and not

reasonably relevant to the question of whether

petitioner should be sentenced to death or be

sentenced to life in prison there is-~ no

violation of Lockett v. Ohio, 438 U.S. 586

(1978) or the reaulrement that there be

individualized sentencing and certiorari should

be denied.

2. The Court should deny the writ because

the rationale underlving the strict

interpretation of the statutory aqaqravating

circumstances of “esnecially heinous, atrocious

E-Or cruel" in Godfrev v. Georgia, 446 U.S. 420

(1980) is not anplicable under the Mississippi

capital murder statutory framework.

Ze Where the comments of the prosecutor

during the closing arguments of the sentence

Mhase relating to the fact that petitioner had

not testified at previous trials did not

violate any rights quaranteed under the Fifth,

Sixth, Eighth, or Fourteenth Amendments

certiorari should be denied.

TABLE OF CONTENTS

Page:

QUESTIONS PRESENTE D----------------- 1

TABLE OF CONTENTS------------------- Li-ili

TABLE OF AUTHORITI*tS---------------- iv-vii

OPINION BELOW----------------------- 2

JURISDICTION ------------------------ 2

CONSTITUTIONAL AND STATUTOPY

PROVISIONS INVOKFD------------- a

STATEMENT OF THE CASR--------------- 3-11

RFASONS FOR DENYING THs WRIT-------- ll

Re Where hearsay evidence

relating to nost crime

Mrison behavior is excluded

On the grounds of it being

incompetent and not

reasonably relevant to the

question of whether

netitioner snould be

sentenced to death or be

sentenced to life in prison

there is no violation of

LOCKett v. Ohio, 438 U.S.

586 (1978) or the

requirement that there be

individualized sentencing

and certiorari should he

denied ,.------------------------+ 11-22

TABLE OF CONTENTS —- Continued

Ze The Court should denv the

writ because the rationale

underlying the strict

interpretation of

Statutory adqravating

circumstances of “especially

heinous, atrocious or cruel"

in Godrey v. Georaia,

US- 420 (1980) is

applicable under

Mississinni canital murder

Statutory framework-----------

. Where the comments of the

Nrosecutor during the

closing arguments... of the

sentence phase relating

the fact that netitioner had

not testified at previous

trials did not violate anv

rights quaranteed under the

Piftth, --Sisth, Eiqhth,

Fourteenth Amendments

certiorari should be

denied-------------------------

CONCLUSIO‘']

CERTIFICATE OF SFERVICE------------

Page:

TABLE OF AUTHORITIES

CASES: PAGE:

Railev v. Anderson, 325 U.S.

203 (1945 ) ------- 2-2 Ag

Rarclav, U«S-6 » +? LeEa. 2a

1134, 103 S.Ct. 3418 (1983)---- 34, 36,

Barefoot v. Fstelle, 697 F.2d

593 (Sth Cir. 1983), Aff'd,

0.9. » 37 Befu2ed: 1090.

193 S.Ct. 3383 (1983)---------- 1s. 37,

Billiot v. State, 454 So.2d

455 (Miss. 1984), cert.

denied, U.S.

(No. 84-5783, 1985)------------ 33

Bullock v. State, 391 So.2d

601 (Miss. 1930), cert.

denied, 452 U.S. 931 (1981)---- 34

California v. Ramos, U.6. ’

Tl LebOeaO TLite 10% Gece

3446 (1983)-------------------- 24, 34,

38, 39

Callowav v. Wainwriacht, 409

F.2d 59 (5tn Cir. 1968)-------- 43

Cardinale v. Louisiana, 394

U.S. 437 (1969)---------------- AQ, 47

Chambers v. Mississinn:i, 410

Uete £085 OS Bice~ TOeGs

35 Le&ad.2d 297 (1973)---------- a oe ee

Culberson v. State, 379 So.2d

499 (Miss. 1980), cert.

denied, 449 U.S. 986 (1980)---- 34

Fddinas v. Oklahoma, 455 U.S.

eas Fh Seen te eee

S.Ct. 869 (1982) -<-<---<e--------- 12

Edwards v. State, 441 So.2d

S44 (MESS « 1993 pene censesese== 33

Evans v. State, 422 So.2d

737 (Miss. 1982), cert.

denied, ite

(No. 82-6267, 1983) -<----------- 34

TABLE OF AUTHORITIES - Continued

Paqe:

Gilliard v. State, 428 So.2da

576 (Miss. 1980), cert.

denied, U.S<

(No. 82-6775, 1983)------------ 34

Godfrev v. Georgia, 446 U.S.

420 (1980 ) e23-<<<<33<eeee%"e""""""°" 35... 37

Gray v. Lucas, 677 F.2d 1086

(Sth Cir. 1982), reh.

denied, 685 F.2d 139

(Sth Cir. 1982), cert.

denied, 461 U.S. 910

(1983), reh. denied, 462

U.S. 1124 (1933 )--------------- 34

Green v. Georaia, 442 U.S.

95, 60 L.Ed.2d 7838,

$9 S.C. F250- Ci S73 er errr re“ 13, 14, 45

17, 18, 21

Greaq v. Georgia, 423 U.S.

153 (1976) ---------------- 29

Griffin v. California, 339

tr. 8. 66s, 835 Seles bee,

14 Le&dad.2d 106 (1955)---------- e232. 42

Harris ve Pulley, 692 F.2d

Liss ¢(9tn Cir. 1932},

rv'd on other arounds,

HeS- - 308. SCE.

B71, 79 Lefd.2d 29 (1984)------ 13

Hill. v. State, 432 S60.20.-427

(1933 ) e-em nr nr nr nr rrr rr rrr 43

In re Jordan, 3990 So.2d 534

(Mise, [980 jooereee neces eerwone 40

Jackson v. State, 337 So.2d 1242

(Miss. 1976) ----sereefrrr rrr 3. Gy 20

Jones v. State, 318 So.2¢a

983 (Miss. 1980), cert.

denied, 449 U.S. 103 (1989)---- 34

Jordan v. “ississinni, 444 U.S. 885,

100 S.Ct. 175, 62 LeEd.2d 114

TABLE OF AUTHORITIES —- Continued

Jordan v. State, 365 So.2d 1198

(Miss. 1979)------------------- 4

Jordan v. State, 464 So.2d 475

(Miss. 1985)------------------- 2, &

Jordan v. Watkins, 681 F.2d 1967

reh. den. sub. non.,

Jordan v. Thiaqpen, 688 F.2d 395

(Sth Cir. 1982 )---------------- 5

Jurek v. Texas, 428 U.S.

262 (1976)--------------------- 22, 336

Lockett v. Ohio, 438 U.S.

586, 57 L.Ed.2d 973,

98 S.Ct. 2954 (1978)----------- 32, ie

Proffitt v. Florida, 4238

U.S. 242 (1976)---------------- 22

Reddix v. State, 381 So.2d

999 (Miss. 1980), cert.

denied, 449 U.S. 986 (1980)---- 34

Shriner v. Wainwriaht, 715

F.2d 1452 (ilth Cir. 1983)----- 13

Spivey v. Zant, 661 F.2d

464 (Sth Cir. 1981 )------------ 12

Street v. New York, 394

U.S. 576 (1969)---------------- 40, 49

Tokman v. State, 435

So.2d 664 (NMNiss. 1983),

cert. denied, 0.8.

104 S.Ct. 3547, 82 L.Ed.2d

850 (1984)--------------------- 33

Tucker v. Francis, 723 F.2d

1504 (lith Cir. 1984)---------- 43

Washington v. Watkins, 655

F.2d 1346 (Sth Cir. 1981)------ 12

Webb v. Webb, 451 U.S. 493,

68 L.Ed.2d 392, 101

S.Ct. 1889 (1931 )-------------- 40, 49

Winters v. State, 449

So.2d 766, 768-69

(Miss. 1984 )------------------- 20

Younaq v. Zant, 727 F.2d

1489 (1984 )=+=------------------- 13

TABLE OF AUTHORITIES - Continued

Zant v. Stenhens, U.S. :

44 we waeka @4338- £03

Sees (1933) ee a

CODES AND STATUTES:

28 U.S.C. © 1257(3)-----------------

M.C.A. S 97-3-19(2) (Sunn. 1983)----

M.C.A. § 99-3-19 (Sudp. 1983 )-------

M.C.A. S&S 99-19-1011 (Supp. 1984)-----

Vernon's Texas Code Ann.,

Penal Code § 19.03.------------

OTHER:

Fifth Amendment, U.S. Constitution--

Sixth Amendment, U.S. Constitution--

Eiqhth Amendment, U.S. Constitution-

Fourteenth Amendment, U.S.

Const i tut ion<<<<<<<<cn..cncncuce

Rule 401, Fed. R. Fvid.-------------

Rule 608, Fed. R. Evid.----~--------

Paqe:

3, 33

Ze 39

NO. 84-1738

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 19384

RICHARD GERALD JORDAN,

Petitioner,

VERSUS

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

BRIEF IN OPPOSITION

Respondent, State of Mississippi,

respectfully prays that the Petition for Writ

of Certiorari to the Supreme Court of the State

of Mississippi be denied in this case.

OPINION BELOW

The oninion of the Supreme Court of the

State of Mississinpni is reported as Jordan v.

State, 464 So.2d 475 (Miss. 1985). A copy of

the opinion is before the Court in petitioner's

Appendix to Petition for Writ of Certiorari to

the Supreme Court of Mississippi at la-33a.

JURISDICTION

Petitioner seeks to invoke the

jurisdiction of this Court by way of a Petition

for Writ of Certiorari through the authority of

28 U.S.C. § 1257(3). He fails to do so.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOKED

Petitioner seeks to invoke the provisions

of the Constitution of the United States,

Amendments Five, Six, Eiaht and Fourteen. He

also relies on Section 99-19-101, Miss. Code

Ann. (Supp. 1984).

STATEMENT OF THE CASE

The netitioner, Richard Gerald Jordan, was

indicted on March 26, 1976, in the Circuit

Court of the First Judicial District of

Harrison County, Mississippi for the January

Lae 1976 kidnapping and murder of Edwina

Marter. On motion for change of venue the

matter was transferred to the Circuit Court of

Jackson County, Mississippi where petitioner ~

was tried and automatically sentenced to

death. Within the time for the granting of a

new trial the Mississippi Supreme Court decided

Jackson v. State, 337 So.2d 1242 (Miss. 1976),

holding that automatic imposition of the death

penalty was improper. The trial court granted

the motion for new trial and Jordan was again

Put to trial under the guidelines imposed by

the court in Jackson, supra, concerning jury

sentencing. Jordan was aqain convicted of

capital murder and sentenced to death, this

time by the jury. The Mississippi Supreme

Court affirmed on direct anneal and rehearing

was denied. Jordan v. State, 365 So.2d 1198

(Miss. 1979). Certiorari was denied by this

Court in Jordan v. Mississippi, 444 U.S. 885,

100 $.Ct. 175, 62 L.Ed .2d 114 (1979).

Petitioner then petitioned the State Supreme

Court for post-conviction relief. This

petition for writ of error coram nobis was

denied. In re Jordan, 390 So.2d 584 (Miss.

1980).

On January 3, 1980 prior to filing his

petition tox coram nobis relief, Jordan filed a

petition for writ of habeas corpus in the

United States District Court for the Southern

District of Mississippi. These proceedings

were stayed pending exhaustion of all claims in

the state courts. On March 19, 1981 the

Honorable William Harold Cox, United States

District Judqe, denied the petition, and an

appeal to the United States Court of Appeals

for the Fifth Circuit ensued. On August 6,

19381, the Fifth Circuit affirmed in part and

reversed in part the decision of the district

court, vacating the sentence of death.

Thereafter a petition for rehearing was

denied. Jordan v. Watkins, 681 F.2d 1967,

reh. den. sub. nom., Jordan v. Thianen, 688

F.2d 395 (5th Cir. 1982). The State elected

not to file a petition for writ of certiorari

with this Court.

A new! sentencing hearing was held by the

Circuit Court of Harrison County, Mississippi,

First Judicial District and a death sentence

returned in proper form by the jury on April

29, 1983. This marked the third time that

Jordan had been sentenced to death. On

automatic appeal to the Mississinppi Supreme

Court the sentence of death was aqain affirmed

On January 30, 1935. Rehearing was denied on

March 13, 1085. Jordan v. State, 464 So.2d 475

(Miss. 19385).

The facts reflected by the record show,

that on or about January 10, 1976, in Baton

Rouge, Louisiana, netitioner, traded a shotqun

for a .38-caliber revolver. Then he came to

Gulfport, Mississippi, and obtained lodging at

the Twin Star Motel where he registered as

"Jack Wilson." With kidnapping in his mind,

and using the fictitious name of "Jack Wilson,"

Jordan called the Culf National Bank = and

expressed a desire to sneak to the commercial

loan officer. He was referred to Mr. Marter,

whose wife was soon to be Jordan's victim.

Perusal of the telenhone directory revealed to

Jordan only one Gulfport listing of the name

"Marter." Having obtained the Marter address

from the directory, Jordan drove by the Marter

residence where several cars were parked,

including a Mercedes and a sports car. After

all but one of the cars was driven away, Jordan :

dialed the Marter residence telenhone number

and neard a female's voice answer. Then he

decided to make his move.

Dressed in a sport coat, tie and knit

pants, and carrying a manilla folder, Jordan

went to the Marter residence. He rang the door

bell aid was greeted by Mrs. Marter whom he

told that his electrical company had received

information of defective circuit breakers in

the area which he was investigating. Mrs.

Marter admitted him inside, whereupon he

kidnapped “rs. ‘Marter at gunpoint and took her

away, leaving her three-year-old son asleep in

the house. At his command, she drove him out

into the snarsely settled DeSoto National Park

wooded area. They traveled down a logging road

to where he ordered her out of the car, telling

her that she would stay there with his partner

until he obtained money from her husband, after

which he woulda release her. She became

extremelv fearful when she discovered there was

no partner there, and petitioner forced her

onto her knees and shot her in the back of the

head. |! He then went to a telephone and called

Mr. Marter at the bank. Demanding $25,000,

Jordan stated: "We have your wife ..'." and

qave Marter directions how to deliver the money

up on Hiaqhway 49. Marter quickly obtained the

money, but his efforts to drop it where

directed failed because he did not find the

coat (beside the higtiay) upon which he was

Supposed to drop the money. Being fearful on

account of two vehicles following Marter,

Jordan had decided not to put out the coat.

Jordan took the .38-caliber revolver (the

murder weapon) and threw it into the Biq Biloxi

River, from which it was later recovered after

1 Jordan, a self-described

marksman, claims he shot Marter

in the back of the head as she

was running away from him.

he revealed its location. Before Mr. Marter

aqain attempted to deliver the money = as

directed by a second telephone call from

Jordan, the money was serialized and

microfilmed with FBI officers then actively

investigating the matter. During this second

telenhone conversation between Jordan and Mr.

Marter, Jordan assured Marter that his wife was

all right, and demanded that Marter drop the

money on Interstate Hiqhway 10. Marter

proceeded as Jordan ‘directed; this time he

found the coat and dropped the money on it.

Two officers, Deputy Sheriff Larkin Smith and

FBI Aqent Shepherd, having been made aware of

what waS goinq on, were positioned near the

scene of the drop and saw Jordan place a coat

there. Soon they saw him pick up the money,

after which they gave chase as high speed.

During the chase, Jordan rammed his car into

the vehicle of the officers, running them off

the road. They shot at his receding car, but

Jordan continued his flight although his car

was rendered partially disabled when, in the

ramminq enisode, a bent fender came in contact

with a tire. Farther on, Jordan abandoned his

vehicle at a shonning center, hide the money in

the woods, went to another shopping center,

and, at aT. G. & Y. store, purchased a red

jump-suit which he donned before he left the

store. He got a taxi at the shopping center

and told the driver to take him to the Twin

Star Motel. Not knowing that Jordan was the

man for whom a large search was under way, the

taxl driver told Jordan that roadblocks were up

and that the officers were looking for

someone. En route to the motel, the taxi was

stopped and an officer identified Jordan from a

picture already obtained by the FBI. The

officer arrested Jordan and turned him over to

the FBI. That afternoon, January 13, 1976,

Mrs. Marter's body was found. On the next day

-10-

a diver from the Gulfport Fire Department

retrieved the murder weapon from the river.

REASONS FOR DENYING THE WRIT

Petitioner has presented no federal

question of sufficient substance that would

warrant the granting of this petition for writ

of certiorari.

ARGUMENT

l. WHERE HEARSAY EVIDENCE RELATING TO

POST CRIME PRISON BEHAVIOR IS

EXCLUDED ON THE GROUNDS OF IT BEING

INCOMPETENT AND NOT REASONABLY

RELEVANT TO THE OUESTION OF WHETHER

PETITIONER SHOULD BE SENTENCED TO

DEATH OR BE SENTENCED TO LIFE IN

PRISON THERE IS NO VIOLATION OF

LOCKETT V. OHIO, 438 U.S. 586 (1978)

OR THE REOUIREMENT THAT THERE BE

INDIVIDUALIZED SENTENCING AND

CERTIORARI SHOULD BE DENIED

Relying on Lockett v. Ohio, 438 U.S. 586,

57 L.Fd.2d 973, 93 SeCE 2954 (1978),

petitioner cites four instances in which he

-ll-

Claims that he was pnrecluded from adducing, as

a mitiqating factor, certain aspects of his

character or record.

Upon review of the authorities primarily

relied upon by defendant Lockett, supra,

Eddinas v. Oklahoma, 455 U.S. 104, 71 L.Fd.2d

l, 102 S.Ct.869 (1982), etc., and their

progeny, Snivey v. Zant, 661 F.2d 464 (5th

Cir. 1981), Washington v. Watkins, 655 F.2d

1346 (5th Cir. 1981), etc., one notes that

while recounting the fact that the states may

not limit, either by statute or instruction,

the jury's right to consider proof of any

circumstance or combination of circumstances

Surrounding the life and character of the

defendant that would be reasonably relevant to

the question of whether he should suffer death

or be sentenced to life in prison, there has

not been a plethora of discussion on the actual

particular rules of evidence applicable to

sentencing procedures. After extensive

-|2-

a intel

research on the question we have found only (4)

Federal] cases discussing this precise

question. See: Shriner v. Wainwriaht, 715

F.2d 1452 (llth Cir. 1983) (description of

death by electrocution not admissible); Harris

v. Pulley, 692 F.2d 1189 (9th Cir. 1982), rv'd

on other aqrounds, U~.S , 206 86.Ct. Ori, 72

LeFd.2d 29 (1984) (description of execution by

lethal gas not admissible); Youna v. Zant, 727

F.2d 1489 (1984) (testimony concerning the tyne

Of rehabilitative program that could return

netitioner to useful member of society properly

excluded).

The fourth and probably most instructive

wes the Supreme Court's discussion of the

application of the Georgia rules of evidence to

the sentencing phase in Green v. Georgia, 442

U.S. 95, 60 LL. Bd.2€a 788, 99 S.Ct. 2350 (1979).

Focusing on a situation quite similar to that

in Chambers v. Mississippi, 410 U.S. 284, 83

S.Ct. 1038, 35 L.Ed.2d 297 (1973), the Georgia

«}3«

courts excluded the testimony of a third partv

during the sentencing phase to the effect that

Green's co-defendant had stated that he and not

Green was the perpetrator of the crime. In

reversing the Georgia Supreme Court, this Court

in Green, supra, stressed the unique factual

case presented statina:

Reqardless of whether the

proffered testimonv comes within

Georgia's hearsay rule, under’ the

facts of this case its exclusion

constituted a violation of the Due

Process Clause of the Fourteenth

Amendment. The excluded testimony

was hiqhly relevant to a critical

issue in the punishment phase of the

trial, see Lockett v. Ohio, 438 U.S.

586, 604-605, 57 L.Ed.2d 973, 98

$.Ct. 2954, 393 Ghio Opa. 364 26 (1978)

(plurality opinion); id., at 613-616,

S7 L.8d.28@ 973, 98 3.Ct. 2954, 9 Chico

Ops., 3d 26 (opinion of Blacksun,

J.), and substantial reasons existed

to assume its’ reliability. Moore

made his statement spontaneously to a

close friend. The evidence

corroborating the confession was

ample, and indeed sufficient to

procure a conviction of Moore and a

capital sentence. The statement was

against interest, and there was no

reason to believe that Moore had any

ulterior motive in making st.

Perhaps most important, the State

#}4<

considered the testimony sufficiently

_reliable to use it against Moore, and

to base a sentence of death upon it.

In these unique circumstances, "the

hearsay rule may not be applied

mechanistically to defeat the ends of

justice. Chambers v. Mississippi,

410 U.S. 264, 302... 35 L.84i20 237. 33

S.Ct. 1038 (1973). Because the

exclusion of Pasby's testimony denied

petitioner a fair trial on the issue

of punishment, the sentence. is

vacated and the case is remanded for

further pnroceedinas not inconsistent

with this opinion.

442 Us8« at 37.

The Court of Anneals for the Fifth Circuit

commented on Green in Barefoot v. Estelle, 697

F.2d 593 (Sth Cir. 1983), Aff'd, U.S. , Ji

L.Ed.2d 1090, 103 S.Ct. 3383 (1983):

In Green, the state court

excluded evidence that the accused's

codefendant had actually killed the

victim. This evidence consisted of a

hearsay statement by the codefendant

to a friend. The Court reversed

stating:

Reqardless of whether the

proferred testimony comes within

Georgia's hearsay rule, under

the facts of this case its

exclusion constituted 4

violation of the Due Process

Clause of the Fourteenth

Amendment. The excluded

testimony was highly relevant. to

=15<

q Critical issue, in the

mnunishment phase of the trial

» + « »« (emphasis added)

442 U.S. at 97, 99 S-Ct. at 2151. We

think that Green is limited to its

facts, and certainly did not

federalize the law of evidence. It

does, however, indicate that certain

eqregious evidentiary errors may be

redressed by the due process clause.

697 F.2d at 597.

Several conclusions and deductions can be

made from these cases. First, it is obvious

that while the rules of evidence have been

relaxed they certainly have not been

abolished. In this regard, we note that a

defendant may not be precluded from producing

evidence on any aspect of his life, character

and record or any circumstance of the offense

in mitigation of sentence. Second, while proof

is quided by the bounds of relevancv, there are

Other rules of evidence which may come to bear;

i.e., comnetency, privilege, materiality, etc.

We doubt anyone would question the exclusion of

hearsay testimony where the declarant is

available to testify, or the introduction of

-16-

She ene

pe eee Ve en

Privileged testimony over the objection of the

one entitled to invoke the privilege. As the

Fifth Circuit pointed out in Barefoot, in light

of Chambers, under Green we must assume that

within certain boundaries the rules of

competency still apply at sentencing.

Generally speaking, relevancy has_ been

defined as "evidence having any tendency to

make the existence of any fact that is of

consequence to the determination of the action

more probable than it would be without the

evidence." Rule 401, Fed. R. Fvid. Looking

briefly to hornbook law we find that McCormick

has noted:

Relevancy in logic is the

tendency of evidence to establish a

proposition which it is offered to

prove. Relevancy, aS employed by

judges and lawyers, however, is the

tendency of the evidence to establish

a material pronosition. Thus, as

James points out, “evidence may be

excluded as ‘irrelevant' for two

quite distinct reasons: because it is

not probative of the proposition at

which it is directed, or because that

-l17-

Droposition is not provable in the

case.”

McCormick, Evidence at p. 435 (1972).

Following the Green/Barefoot line of

authority it is clear that the effort to

introduce evidence of Jordan's invention

through Russell was hearsay and could have

properly been introduced through Jordan when he

took the stand. Testimony regardinq the

invention from Jordan would not’ have been

"objectionable on the qround of hearsay

testimony, and he may have been able to

establish it as being relevant in his behalf."

AS the court below stated, Jordan “was not

interrogated by his counsel as to, nor did he

attemnt to testify to, the matters sought to be

elicited from Rhett Russell." 464 So.2d at 485.

taskind to the testimony introduced

through Lucius Brown relative to Jordan's

incarceration in the Maximum Security Unit we

find that it clearly shows that some degree of

trust was placed in Jordan and that he had a

-18-

relatively clean disciplinary record while

incarcerated. Brown's subjective oninions

concerning Jordan's cooperativeness and

trustworthiness were irrelevant to the matter

at hand. Also, without more, Brown was not

qualified to give an opinion as to whether or

not Jordan could be rehabilitated. There was

no effort to qualify Brown as an expert in any

field dealing with rehabilitation of prisoners.

Jordan's cousin, Shirley Thames, had not

seen Jordan since 1973, some ten (10) years

prior to this trial and some three (3) years

prior to the commission of the crime. Sh

was

allowed to testify with considerable latitude

as to certain familial traits exhibited by

Jordan and his reputation for violence. The

Only objections sustained were to specific

questions concerning petitioner's’ relations

with his wife of which she had no _ personal

knowledae. This was clearly hearsay and not

admissible.

-19-

Finallv, we note that defendant's brother

Robert H. Jordan was allowed to testify that

his brother had a qood reputation for peace and

violence in the community. The only objection

came when the brother was asked to explain why

this was so. The rule in Mississippi and under

the Federal Rules of Evidence is that you mav

not prove character traits by proof of snecific

past actions. One is limited to offering

testimony as to general renutation. Winters

v. State, 449 So.2d 766, 768-69 (Miss. 1984};

Rule 608, Fed. R. Fvid. There was no error

here.

In anv event it can hardly be said that

the testimony concerning petitioner's actions

and behavior while he was sitting on death row

could be relevant in this case. The entire

time petitioner was on death row he was either

fidqhtingq the death sentence he was under or

prenaring for retrial on the issue of sentence

Once he had been successful in getting the

-?0-

Original sentence overturned. There is no

indicia of reliabilitv in the manner in which

netitioner conducts himself while on death row

while under a death sentence. It can do

nothing but benefit him become the _ model

prisoner and to set himself to some outwardly

worthwhile task. It tells us nothing that is

relevant to his receiving the death sentence on

retrial. Petitioner's whole reason for

conducting himself as he does on death row is

skewed to meet the demands of offering

mitiqating circumstances on retrial.

The case here is not the case found in

Green, supra, as the issue petitioner wished to

introduce did not qo to the very heart of the

sentencing process. The evidence related to

matters only tenuously connected with the

issues on sentencing. The provisions of the

Mississipni statute are constitutional both as

written and anplied. There being no violation

-2\-

of the federal constitutional rights quaranteed

netitioner certiorari should be denied.

2. THE COURT SHOULD DENY THE WRIT

BECAUSE THE RATIONALE UNDER-

LYING THE STRICT INTERPRETATION

OF THE STATUTORY AGGRAVATING

CIRCUMSTANCES OF "ESPECIALLY

HEINOUS, ATROCIOUS OR CRUEL"

in GODFREY V. GEORGIA, 446 U.S.

420 (1980) IS NOT APPLICABLE

UNDER THE MISSISSIPPI CAPITAL

MURDER STATUTORY FRAMEWORK

We begin our consideration of this subject

with a discussion of the elemental framework of

the statute. A comparative review of the

capital murder statutory framework in this

country varies arithmetically with the number

of States. Practically sneaking no-~ two

Statutes are alike. Fq., Compare the statutory

framework discussed in Grego v: Georgia, 428

U.S. 153 (1976); Proffitt v. Florida, 428 U.S.

242 (1976): Jurek v. Texas, 428 U.S. 262

(1976). Of the aforesaid, the substantive

definition of capital murder in Mississippi

cae

resembles that of Texas, Vernon's Tex. Code

Anne, Penal Code €£ 19.03, more so than any

other state. Jackson v. State, 337 So.2a 1242

(Miss. 1976).

Canital murder is Substantively defined in

Miss. Code Ann. § 97-3-19(2) (Supp. 1983) as:

(2) The killinq of a human

beinq without the authority of law bv

any means or in any manner shall be

canital murder in the following

cases:

(a) Murder which 1s

nernetrated Dv . killing a neace

officer or fireman while such officer

or fireman is acting in his official

canacitv or by reason of an act

performed in his official canacity,

and with knowledge that the victim

waS a peace officer or fireman ...;

(b) Murder which is

perpetrated by a person who is under

Sentence of life imprisonment;

nernetrated by any use or detonation

Of a bomb or explosive device;

(d) Murder which 1s

perpetrated by anv person who has

been offered or has received anything

of value for committing the murder,

and all narties to such a murder, are

quilty as principles;

-23-

(e) jhen done with or without

any adesigqn to effect death, by any

person engaged in the commission of

the crime of rane, burglary,

kidnanning, arson, sexual battery,

unnatural intercourse with any child

under the age of twelve (12), or

non-consensual unnatural intercourse

with mankind, cr in any attempt to

commit such felonies;

(f) When done with or without

any desiqn to effect death, by any

person enqaned in the commission ot

the crime of felonious abuse and/or

battery of a child in violation of

Subsection (2) of Section 97-5-39, or

in any attempt to commit such felonv;

(qa) Murder which is

nernetrated ody the killing of any

elected official of a county,

municipal, State or Federal

qovernment with knowledge that the

Victim was such public official.

This irt has recently discussed ca

Sentencing iS 4 narrowing concent.

California - Ramos, U.S. "ee ie ie

1171, 1903 S.Ct. 3446 (1983), Justice O'C

speaking for the Court stated:

In snsuring that the death

nenalty not meted out arbitrarily

or capriciously, the Court's

Mrincinal concern has been more with

tne procedure by which the State

-24-

imposes the death sentence than with

the substantive factors the State

lays before the jury as a basis for

imnosing death, once it has been

determined that the defendant falls

within the cateqory of person

eligible for the death penalty. In

Greaq v. Georgia, 426 U.S. 153, 49

LeEG~e20 S59, 9G -S5CE. 2909 - 61976).

and its comnanion cases, the Court

reviewed the capital sentencing

schemes of five states to determine

whether those schemes had cured the

constitutional defects identified in

Furman v. Georgia, 408 U.S. 238, 33

LetGsetG 346. 32 SsCtc 2726 (ists

In Greqg itself, the joint oninion of

Justice Stewart, Powell, and Stevens

concluded that the Georgia sentencing

scheme met the concerns of Furman by

Providing a bifurcated proceeding,

instruction on the factors to be

considered, and meaninqtul annellate

review of each death sentence. 423

U.S. at 189-195, 49 L.Fd.2d 3859, 96

$.Ct. 2909 (opinion of Stewart,

Powell, and Stevens, Jedela

Satisfied that these procedural

safequards “Suitably directed and

limited" the jury's discretion "so as

to minimize the risk of wholly

arbitrarv and capricious action,"

$0., at 189. 49 -L.€d.20 9359, 96

S.Ct. 2909, the joint opinion did not

undertake to dictate to the state the

Particular substantive factors that

should be deemed relevant to the

capital sentencing decision. Indeed,

the joint opinion observed: “Te

seems clear that the problem fof

channeling jury discretion] will be

alleviated if the jury is ‘given

qJulidance reqardingq the factors about

the crime and the GCefendant that the

State, renvresenting Organized

soclety, deens Narticularly relevant

to the sentencing decision." tds, at

192, 49 L.Ed. 2a 859, 96 S.Ct. 2909

("the deference we owe to the

decisions of the State legislatures

under our federal System ... is

enhanced where the specification of

Punishments is concerned, for ‘these

are peculiarly questions of

legislative POL EC¥.**)..

77 L.Ed.2d at 1179-80,

In Zant v, Stenhens, is 2 oe ie,

LeFd.2d 235, 247-52, 103 Set, (1933) the

Court elaborated upon the "narrowing" concent:

: In Georgia, unlike some other

States, the jury is not instructed to

qive any snecial weight to any

aqqravatina circumstances, to

consider multiple aggravating

circumstances any more siqnificant

than a single Such circumstance, or

to Nalance aggravating against

mitigating circumstances Mursuant to

any special standard. Thus, in

Georgia, the finding of an ,

aqqravating circumstance does not

Dlay any role in Quiding the

sentencing body in the exercise of

its discretion, anart from its

function of narrowing the class of

PCErSOnN convicted of murder who are

eligible for the death penalty, For

this reason, resnondent argues that

Georgia's Statutory scheme is invalid

under the holding in Furman Vv.

Georaia.

pn ined S FL |

A fair Statement of the

consensus exnressed by the Court in

Furman is "that where discretion is

afforded a sentencing body on a

matter so qrave as the determination

Of whether a human life Should be

taken or SYpared, that discretion must

de Suitably directed and limited so

as tO minimize the risk of wholly

arbDitrary and Capricious action."

Greqq v. Georqia, 428 U.S. 153, 189,

96 Blea 2909 (1976) (Oninion§ of

Stewart, Powell, and Stevens, Jeds)

After thus Summarizinq the central

mandate of Furman, the Plurality

OPinion in Greqq set forth a general

Exposition of sentencing Nrocedures

that would Satisfy the concerns of

Furman, id., at 189-195, 49 L.Fd.2d

859, 96 S.Ct. 2909, But it expressly

Stated, "We do not intend to Suggest

that Onlv the above-described

Procedures would De permissible under

Furman or that anv sentencing system

Constructed along these general lines

would inevitable Satisfy the concerns

Of Furman, for each distinct System

"uSt be examined On an individual

Nasis," iG... at 195, 49 L.Fd.2d 359,

96 S.Ct. 2909. The opinion then

turned to specific consideration of

the constitutionality of Georgia's

Capital sentencing Drocedures, Id.

at 196-207, 49 L.Fd.2a 859, 96 oe iw ee

2909,

Georgia's scheme includes two

important teatures which the

Nlurality described in this qenera]

~27=

discussion of sentencing norocedure:

that would quide and channel the

exercise of discretion. Georgia has

a bifurcated nrocedure, see id., at

190-191, 49 LsEG.2d 859, $6 §.Ct.

2909, and its statute also mandates

meaningful appellant review of everv

death sentence, see id., at 195, 49

Le-Fd.2d 859, 96 S.Ct. 2909. The

Statute does not, however, follow the

Model Penal Code's recommendation

that the jurv's discretion in

weighting aqaravating and mitigating

circumstances against each other

should be governed by specific

Standards. See id., at 193, 49

L.Fd.2d 859, 96 S.Ct. 2909. Instead,

as the Georogia Supreme Court has

unambiguously advised us, the

aagqravating circumstances merely

performs the function of narrowing

the category of person convicted of

murder who are eligible for the death

penalty.

Respondent arques that the

mandate of Furman is violated by a

scheme that permits the jury to

exercise unbridled discretion in

determining whether the death pnenalty

should be imposed after it has found

that the defendant is a member of the

class made eligible for that penalty

by statute. But that argument could

not be accepted without overruling

our specific holding in Greaa. For

the Court approved Georgia's capital

sentencing statute even though it

clearly did not channel the jury's

discretion by enunciatinq specific

Standards to quide the jurv's

EEE

consideration of agqaqravating and

mitiqating circumstances.

fhe olurality's anproval of

Georgia's canital sentencing

srocedure rested primarily on two

features of the scheme: That the

jury was required to find at least

one valid Statutory aggravating

circumstance and to identify it in

writing, and that the state supreme

court reviewed the record of every

death penalty proceeding to determine

whether the sentence was arbitrary or

disproportionate. These elements,

the opinion concluded, adequately

nrotected against the wanton and

freakish imposition of the death

nenalty. This conclusion rested, of

course, on _ the fundamental

requirement that each statutory

aaqravating circumstance must satisfy

a constitutional standard derived

from the principles of Furman

itself. For a system "could have

Standards so vague that they would

fail adequately to channel the

sentencing decision patterns of

juries with the result that a nattern

of arbitrary and capricious

sentencing like that found

unconstitutional in Furman could

occur.” 423 U.S. at 195, ne 46, 49

L.Fd.2d 589, 96 S.Ct. 2999. To avoid

this constitutional flaw, an

aggravating circumstance must

genuinely narrow the class of persons

eliqible for the death nenalty and

must reasonably justify the

imposition of a more severe sentence

on the defendant conpared to others

found quilty of murder.

«29e

Thus, in Godfrey v. Georqia, 446

UeS.- 420, 64 L.£&d.20d 398, 100 S.Ct.

1759 (1930), the Court struck adown an

aggravating circumstance that failed

to narrow the class of Nersons

eligible for the death penalty.

Justice Stewart's oninion for the

Dluralityv concluded that. the

aqgravatingq circumstance described in

subsection (b)(7) of the Georgia

Statute, as construed by the Georgia

Supreme Court, failed to create any

“inherent restraint on the arbitrary

and capricious infliction of the

death sentence," because a person of

ordinary sensibility could find that

almost every murder fit the stated

Criteria. fs at 423-429, 64

LeEd. 2d 3938, #4100 S.Ct, 1759.

Moreover, the facts of the case

itself did not distinguish the murder

from anv other murder. The Dlurality

concluded that there was "no

Drincipled wav to distinguish this

case, in which the death penalty was

imposed from the many in which it was

Rot. * Id., at 433, 64 L.Ed.2d 393,

100 S.Ct. 1759. Our cases indicate,

then, that Statutory aqgravating

circumstances Dlay a

constitutionality necessary function

at the Stage of legislative

definition; they circumscribe' the

Class of perscn eligible for the

death penalty. But the Constitution

does not require the jury to ignore

other possible aagravating factors in

the process of selecting; from among

that class, those defendants who will

actually be sentenced to death. What

is important at the selection staqe

is an individualized determination on

the basis of the character of the

individual and the circumstances of

the crime. See Eddings v. Oklahoma,

455 Use. 108, 2£10"ii2s 71 L.Ed.2d 1,

192 $.Ct. S869 (1982); Lockett v.

Ohio, 438 U.S. 586, 601-605, S7

LettaenG S@'se 38 85.,Ct. 2954 (1978)

plurality opinion); Roberts (Harrv)

v Lousiana, 431 U.S. 633, 636-37,

SZ LetG@eea G37, 97 S.Ct. 1992 (1977):

Greaq, suvra, at 197, 49 L.Ed.2d 859,

95 S.Ct. 2909 (nlurality opinion);

Preoceste. ws- riorsoa, €28 U.S. at

Soe aeee ee. wereete 9312, 96 S.Ct.

2960 (plurality opinion); Woodson v.

North Carolina, 429 U.S. 230,

SU3—3046, 49 Leta. 20 944, 96 S.Ct.

2978 (1976) (plurality opinion).

The Georgia scheme provides for

categorical narrowing at the

definition staqe, and for

individualized determination and

appellate review at the selection

Stage. We therefore must remain

convinced, as we were in 1976, that

the structure of the statute is

constitutional. Moreover, the

narrowing function has been properly

achieved in this case by the two

valid aggravating circumstances

upheld by the Georgia Supreme Court -

that resnondent has-~ escaped from

lawful confinement, and that he had a

prior record of conviction for a

capital felony. These two findings

adequately differentiate this case in

an objective, evenhanded, and

Substantively rational way from the

many Georqia murder cases in which

the death penalty may not be

-31-

Stenhens, supra.

imposed. Moreover, the Georgia

Supreme Court in this case reviewed

the death sentence to determine

whether it was arbitrary, excessive,

or disproportionate. Thus the

absence of the legislative or

court-imposed standards .to govern the

jury in weighing the siaqnificance of

either or both of those aggravating

circumstances does not render the

Georgia capital sentencing statute

invalid as applied in this case.

We note in particular discussion of this

concept in the context of statutes like those

in Texas and Mississipni by the Court in Zant

The plurality opvinion issued the

Same day in Jurek v. Texas, 428 U.S.

262, 49 L.Ed.2d 929, 96 S.Ct. 2950

(1976), makes clear that snecific

Standards for balancing agaravating

circumstances are not

constitutionally required. In Jurek

we held that the State's action in

"narrowing the categories of murders

for which a death sentence may ever

be imposed" served much the same

purnose as the lists of statutory

aggravating circumstances that

Georgia and Florida had adopted.

id., at 270, 449 L.80.20. 9279, 96

S.Ct. 2950. We also held that one of

the three questions presented to the

sentencing jury permitted the

defendant to pring mitiaqating

circunstances to the jury's

attention. td.,. at -273<274, 40

> oe

id Cie RE: ites Ce rents Bek SEE RE TBI OS °

ile OOS IY San NE mein ies ee Reb AAD airs eats a0

Denier

PAriresickon a <

LeEd.2d 929, 96 S.Ct. 2950. Thus, in

Texas, aaqravating and mitiqating

circumstances were not considered at

the same stage of the criminal

prosecution and certainly were not

explicitly balanced 2qe@ins* each

other.

77 LeEd.20 at 429, m. 13.

Therefore, by narrowing the cateaq of

murder in which the S@eath sentence ar be

imposed at the incentian of tlre case,

“ississippi has complied wit? the

constitutional mandate of Jwrek and Jtenmhens.

Consequently, the aqyravating factors fownd in

Miss. Code Ann. * 99=19-101 (Supp. 1984) do or

serve the same purpose in Mississippi! as they

do, for instance, as in Florida or Georgia. ‘le

note that the arguments advanced by petitioner

have been rejected by the Mississippi Supreme

Court in several recent cases. Billiot v.

State, 454 So.2d 455 (Miss. 1984), cert.

denied, U.S. (No. 84-5783, 1935)+3

Edwards v. State, 441 So.2d 84 (Miss. 1983);

|Tokman_v. State, 435 So.2d 664 (Miss. 1983),

-33-

B2 L.Fd.2d 850 (1984); Gilliard v. State, 4

So.2d 576 (‘tiss. 1983), cert. denied,

U.S. (NO. 92-6775, 1983); Evans v. Stat

42? So.2d ye (Hise. 1982), cert den ,edq

N.S. (No. 82-6257, 1983); Bullock

State, 39] So. 2d 601 (Miss. 1930), cer

. 4

State, 379 So.2d 499 (Miss. 1939), cer

denied 449 U.S. 986 (1930); Reddix v. Stat

381 So.2d 999 (Miss. 1980), cert denied, 4

U.S. 936 (1930); Jones v. State, 318 So.2d 9

(ifiss. 1930), cert. denied, 449 U.S. 1903

(1930). See also: Gray v. Lucas, 677 Ff.

1986 (5th Cir. 1982), reh. denied, 635 F.2d 1

(Sth Cir. 1932), cert. denied, 461 U.S. 9

(1983), reh. denied, 462 U.S. 1124 (1983).

Summarizing the foregoing, we fin that

Stephens, Barclav, U.Ss:'» FP temeeee 1954

103° S.Ct. 3418 (1983), and Ronas reflect

clear understanding and accentance of divers

methods of achieving a narrowing of the clas

-34-

+ »

r ~

¢ as

Statutes Be its iefinition of rig a1 >

mttraAancna - In reasin ] the nrot aBaCT ION toy tha

1erendant 1S the requirement that Circumstances

SUDPOTrTing rt. -IMinisning tna 1@atn sentence bDe

Wa ‘ . 5 os ; ~\+} T ' }

welgned ne aqainst the otner,. in Sum, tne

Missics} ry} STaAarTiTe ic WIniaue na tharea ic ale’

LeoLows 7LaGCUt LS mM’que ANA tee Ss LS 1O

constitutionality solely in deference EO) 2

separate and different system of thought and

NDractice, rhe distinguishing process required

From state to state was recognized in

Stenhens. States may vary their respective

MYrocadq 4 S cry l¢ ne = r Y 5 | V7 2 ? B-e =~

iI Ceau ss) > O i | iS the ena LTY wnase

bi@ei'sa Yac FOr ry) "oy Yyx74a WT) 14 a | . + NIanaAHKHIAN

>} & Rew oo rf an 1B eieg | wWuall 2 1etCeyx ia. o' I

} a hh rere ee eee - } m@ " . .

ang tne circumstances of the crime. Stenhens

1! Bek. 20a ak 361

s*@ 4 @ 4.4 4 2 a

ped

a |

)

“a

“fh

‘

= |

”

has narrowed the classes of individuals

eligible to receive a

-36-

limiting the situation in which the crime may

ve Ccnargqed. a nsequentlyv, the notential abuse

Jiscussed in Godfrey could not arise in

M1SS1SSiDni. Additionally, the State as

»Stablished cercain procedural safequards in

the form of 3] required finding of an

agaqravatingq circumstances bevond 1 reasonable

10uHDt and the required weighing of aggravating

and mitiqatingq circumstances to suitably limit

and direct the jury's jiscretion so as _ to

Ninimlze tne risk of arbitrary and capricious

action.

Upon consideration of the statutory scheme

aS a whole, tne aqqravating circumstances in

N1Ssissinpi ‘Oo not serve in part the same

purposes of functions as those in Georagia. In

Particular one F the principal functions of

iqgravating circumstances in the Georgia scheme

1S to limit those eligible for death. This

: :

Function in “MliSS1SSi1DNi is served by the

-37-

aggravating and mitigating Circumstances, on

the other hand, were included within the system

in order to qive the Jury sufficient tools to

qive individualized consideration to the

Character and life of the defendant and his

crime.

In limiting the circumstances in which

death may be imposed and in providing a

Procedural system Dy which the Jury before

Passina sentence may undertake an

individualized consideration of the defendant

and his crime, Mississippi has accomplished the

required "narrowing" and by Such "Suitably

directed and limited the jury's discretion so

as to minimize the risk of wholly arbitrary and

Capricious action ...." Ramos, 77 L.Ed.2d at

tusk Such is all the Constitution requires.

The State is, therefore, free to establish and

define the aggravating circumstances it deems

appropriate Without interference from the

-38-

Federal judiciary. Ramos, Supra; Barclay,

Supra.

Respondent, therefore, submits. that the

Claim lacks merit and certiorari Should be

3. WHERE THE COMMENTS OF THE PROSECUTOR

DURING THE CLOSING ARGUMENTS OF THE

SENTENCE PHASE RELATING TO THE FACT

THAT PETITIONER HAD NOT TESTIFIED AT

PREVIOUS TRIALS DID NOT VIOLATE ANY

RIGHTS GUARANTEED UNDER THE FIFTH,

SIXTH, EIGHTH, OR FOURTEENTH

AMENDMENTS CERTIORARI SHOULD BE DENIED.

In the court below petitioner raised

allegations that the Prosecutor made improper

references to his prior exercise of his Fifth

Amendment riaht not to testify and that he made

"Other highly improper and MOrejudicial

remarks." His major thrust below was that it

was improper to comment on the fact that

petitioner was silent in his two prior trials,

Only minor mention was made of the other narts

of the argument. On this petition he now

-39-

raises tn1s same issue here; however, he has

vy . ~ - : Se . . h »~ sp

rade substantial alterations in the thrust o

the argument raising thinqs that he did not

present to the court below. The thrust of the

argument now is the "other highly improper anda

prejudicial remarks". We must look to see

which of those were presented to the court

below and which were not as petitioner has made

no distinction. Those things in this arqument

that were not specifically raised below or

addressed by the court below cannot be raised

here for the first time. Webb v. Webb, 451

U.S. 493, 68 L.Ed.2d 392, 101 S.Ct. 1839

—

2°)

—

Street V e New TOLLE: 394 Us che 576,

(1969); Cardinale v. Louisiana, 394 U.S 4

The argument netitioner nade tne

cornerstone of his argument below only merits

two paragranhs here, We fined

fron the record

from the prior two (2) trials indicates that

Jordan elected not to testify either at the

-40-

Culnability or sentencina staqes of trial

3ased on substantial evidence, including three

(3) confessions, he was found aquiltv. en

during the resentencina hez

~Ca

ring conducted after

a grant of nabeas cornus relief by the Court of

NV —

Anpeals for the Fifth Circuit did Jordan elect

to testify in his own behalf.

Jordan's testimonv in this resentencin

proceeding was substantially more than a Nlea

. - J a : - » ) = - -

for mercy and directly refuted evidence

tntroduced during the earlier quilt pnhase of

nis trial. He Stated that his comments

concerning his marksmanshin were not true, ana

he exnlained to the jury his version of how the

murder occurred. specifically, he told the

Jury that he did not intentionally shoot lirs.

Marter and that the killing was accidentia]

Petitioner relies here on Griffin v.

4 ‘ om 7 ~ rn rc - . ,

California, 380 U.S. 609, 85 S.Ct. 1229, 14

Le Fd. 2a 106 (1965). Griffin chose not FO

testify during the culpability portion of his

bifurcated capital trial, but he did testify at

the sentencing hearing. The trial judae in

Griffin instructed the jury that is was

nermissible to draw unfavorable inferences from

the defendant's failure to testify. The

prosecutor's comments and the judge's

instruction were on the issue of quilt that

occurred before the jury reached its verdict.

The Court held that it is unconstitutional for

the nrosecutor to comment on the defendant's

Silence during trial by sugaesting an inference

of quilt from the defendant's failure to

testifv in refutation of facts within his

knowledae.

The Griffin circumstances are similar to

those of the instant case, however, two (2)

salient Facts are different. First, in

addition to the prosecutor's comment the court,

in Griffin, instructed the jury that it could

make unfavorable inferences from the

defendant's silence, In the instant case, the

Mrosecutor's comment was not desiqned to

suggest an inference of quilt, for quilt had

already been determined, but rather the

prosecutor's comment was intended to imneach

netitioner's credibility. Second, in Griffin,

the comment and instruction occurred during the

culnabilitv phase of the capital trial and

before the defendant testified at. the

sentencing hearing. Here, the prosecutor's

comment occurred after quilt had been

determined and after the defendant haa

voluntarily testified during the sentencing

hearina. Griffin therefore does not offer

petitioner any solace.

The court below correctly relied = on

Calloway v. Wainwriaqht, 409 F.2d 59 (Sth Cir.

1968) and Tucker v. Francis, 723 F.2d 1504

(llth Cir. 1984) in deciding the issue at

hand. The Mississippi Supreme Court stated:

ve distinquish that case

[Griffin v. California] from the case

sub judice. In Calloway Ve

4Q9

Court

Wainwriaht,

1968S), the

It is

defendant

to the

a purely

nrosecutor

defendant's

explain

already

1594, 1511-12

Court addressed

following

i& a is

unfair to

apnellant's

culnability

with his

during the

defendant i

so long as

his failure

Casey

used

adverse

waived.

voluntarily

merits,

collateral

incriminating

in evidence.

Tucker v.

exculpatory

aqainst

comment

Fr. 2a

sald:

59 {Sth iG,

that when a

testifies

clear

unonNn

the

not just

matter,

comment

failure to

and

nay upon tne

deny

facts

723 F.2a

Francis,

ith Cir. 1984), tae

the question in the

lanquage:

not fundamentally

comment on the

silence during the

juxtanosead

testimony

sentencing nhase. A

s usually told that

he does not testify,

to testity will not

him. In this

Tucker's failure

ohase as

to testify was not used against

him during that nortion of his

trial in which he invoked the

fifth amendment. After he

waived his fifth amendment

privilede Dv testifying, anv

exnectations of protection from

also were