# Opposition Brief — Jordan v. Mississippi > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0182%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 476 U.S. 1101 ## Text 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 17 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) - 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 r ~ 4 ¢ as y 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 oT a >) -" a | . i ) “a CT D ~ ct J “fh + . ‘ + Oo ~ = | ” 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 rh 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 — \O 2°) ae — =e Street V e New TOLLE: 394 Us che 576, (1969); Cardinale v. Louisiana, 394 U.S 4 W ~J The argument netitioner nade tne cornerstone of his argument below only merits two paragranhs here, We fined 4 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 In 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 be Casey used adverse waived. voluntarily merits, collateral incriminating in evidence. Tucker v. (1 exculpatory aqainst comment Fr. 2a sald: 59 {Sth iG, rs Ny that when a testifies clear unonNn the not just matter, comment failure to and nay upon tne deny facts Or 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 See also Raffel v. United States, UeS. 494, 46 S.Ct. 566, 70 LeEd. (1926); McGahee v. Massev, 667 F.2d 271 1954 1357 oinia } (iy 1oag % _ , a (lith Cir. 19382) on waiver. AKA aoe ‘a ~ A299 | ’ € qen] assumption tha sed below. being no quest Al merit raise -50- 10ONn 5 + 1 cert) CONCLUSION For the foregoing reasons, resnondents respectfully submit that the petition for writ Of certiorari in this case should be denied. Resnectfully Sudmitted, EDWIN LLOYD PITTMAN ATTORNEY GENERAL STATE OF MISSISSIPPI MARVIN L. WHITE, JR. SPECIAL ASSISTANT ATTORNE GENERAL COUNSEL OF RFCORD AMY D. WHITTEN SPECIAL ASSISTANT ATTORNEY GENERAL HY? J + MARVIN L. WHITE, Office of the AttBrnev General Post Office Rox 229 Jackson, Mississipni 39205 Telephone: (601) 359-3680 -5]- CERTIFICATE OF SERVICE ir Marvin Lie White, ot «s a Snecial Assistant Attorney General for the State of Mississippi, do hereby certify that I have this day caused to be mailed, via United States Postal Service, first-class postage prenaid, three (3) true and correct conies of the foreaoing Brief in Opposition to the following: Timothy N.. Black, Esquire WILMER, CUTLER & PICKERING 1666 K Street, N.W. Washington, N.C. 20006 Counsel for Petitioner This, the AO day of July, 1935. ine hak MARVIN « WHITE, JRe -52- --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0182%3A3. Public record. Not legal advice.