Opposition Brief — Arrant v. Alabama

IN THE SUPREME COURT 0

THE UNITED STATES:

OCTOBER TERM, 1987

JACKIE DALLIE ARRANT,

PETITIONER,

vs.

STATE OF ALABAMA,

RESPONDENT.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

BRIEF, ARGUMENT AND APPENDICES IN

OPPOSITION TO THE PETITION

OF

DON SIEGELMAN

ATTORNEY GENERAL

AND

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

AND

JEAN ALEXANDRA WEBB

ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR RESPONDENT

ADDRESS OF COUNSEL

OFFICE OF THE ATTORNEY GENERAL

ALABAMA STATE HOUSE

11 SOUTH UNION STREET

MONTGOMERY, ALABAMA 36130

(205) 261-7300

QUESTIONS PRESENTED

1. Where two co-defendants are

tried jointly and one testifies and the

other does not, does the testifying

defendant have standing to question an

alledea comment on the failure of the

other defendant to testify?

2. What relevance does the

Constitution of Alabama have in this

proceeding?

THE PARTIES

In the Circuit Court of Geneva

County, Alabama the Parties were

co-defendants Jackie Dallie Arrant and

Joseph Ruben Jones as Defendants and the

State of Alabama as Plaintiff. In the

Supreme Court of Alabama Jackie Dallie

Arrant was the Petitioner and the State

of Alabama was the Respondent. Jackie

Dallie Arrant and the State of Alabama

are Petitioner and Respondent,

respectively, herein. In the Alabama

Court of Criminal Appeals Jackie Dallie

Arrant was the Appellant and the State

of Alabama was the Appellee.

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TABLE OF CONTENTS

QUESTIONS PRESENTED--------------

THE PARTIES----------------------

TABLE OF CASES-------------------

OPINIONS BELOW-------------------

JURISDICTION---------------------

CONSTITUTIONAL PROVISIONS

INVOLVED- -----------------

STATUTORY PROVISIONS

INVOLVED- -----------------

STATEMENT OF THE CASE AND

THE FACTS-----------------

A. THE PROCEDURAL HISTORY

OF THIS CASE--------------

1. AT THE TRIAL LEVEL----

3. CERTIORARI IN THE

ALABAMA SUPREME COURT-

CONCLUS ION- - - --------------------

APPENDICES-----------------------

CERTIFICATE OF SERVICE-----------

PAGE

TABLE OF CASES

, PAGE

Bellis v. United States,

417 U.S. 85, 87, 40

L.Ed.2d 678, 683, 94

§.Ct. 2179 (1974)--------- 11

Broaderick v. Oklahoma,

413 U.S. 601, 610, 37

L.Ed.2d 830, 839, 93

$.ct. 2908 (1973)--------- 12

Couch v. United States,

409 U.S. 322, 327-328,

34 L.Ed.2d 548, 93 $.Ct.

611 (1973)---------------- 11

International Longshoremen's

Association v. Davis,

476 U.S. , 90

L.Ed.2d 389, 398,

106 $S.Ct. (1986)------ 13

Laird v. Tatum,

a6: Ge. 12,~ 2834 Be

L.Ed.2d 154, 164, 92

§.Ct. 2318 (1972)--------- 12

McAlister v. Henkel,

201 U.S. 90, 91, 50

L.Ed. 671, 672 (1905)----- 11

McGowan v. Maryland,

366 U.S. 420, 429-430,

6 L.Ed.2d 393, 401, 81

§.Ct. 1101 (1961)--------- 12

Manhattan Life Insurance

Company v. Cohen,

2s% U.S. baa, 196,

58 L.Ed. 1245 (1914)------- 13

iv

TABLE OF CASES (CON'T)

PAGE

Rakas v. Illinois,

439 U.S. 128, 140,

58 L.Ed.2d 387, 399,

99 S.Ct. 421 (1978)------- 5

United States v. Nobles,

422 U.S. 225, 233, 45

L.Ed.2d 141, 150, 95

S.Ct. 2160 (19738)~----....- 11

United States v. White,

322 U.S. 694, 698-699,

88 L.Ed. 1542, 64 S.Ct.

1248 (1944)-------------~- 11

OPINIONS BELOW

The Alabama Court of Criminal

Appeals affirmed the Petitioner's

conviction of burglary, first degree and

theft of property, first degree without

a written opinion on May 12, 1987. On

August 28, 1987 the Supreme Court of

Alabama denied the Petitioner's petition

for writ of certiorari. Both decisions

were unreported.

Copies of both decisions are

attached to the petition.

JURISDICTION

The Petitioner has invoked this

Honorable Court's jurisdiction under 28

U.S.C. §1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

The Petitioner raises an alleged

claim under the Fifth Amendment to the

Constitution of the United States in

iia all

which he argues that his right against

self-incrimination was violated when the

prosecutor allegedly made a comment on

his co-defendant's failure to testify.

The Petitioner also raises an alleged

claim under Article 1, Section 6 of the

Constitution of Alabama in which he

similarly argues that his right against

self-incrimination has been violated.

STATUTORY PROVISIONS INVOLVED

Petitioner Jackie Dallie Arrant

was convicted of burglary, first degree

and theft of property, first degree

under Sections 13A-7-5 and 13A-8-3, Code

of Alabama (1975). (Appendices A and B).

s OF E FA

A.

THE PROCEDURAL HISTORY OF THIS CASE

1.

AT L L

The Petitioner, Jackie Dallie

Arrant, and his co-defendant, Joseph

Ruben Jones, were indicted by the Grand

Jury of Geneva County, Alabama, on

January 17, 1985 on charges of burglary,

first degree and theft of property,

first degree. (TR. 6). The cases

against the Petitioner and his

co-defendant were consolidated for trial

and they were tried jointly on September

25, 1985 in the Circuit Court of Geneva

County, Alabama. (TR. 92).

The Petitioner and his

co-defendant were found guilty as

charged in the indictment on September

25, 1985. (TR. 71). On September 27,

3

1985 the Petitioner was sentenced in the

following manner:

Jackie Dallie Arrant -

sentenced to six (6) years

in the State penitentiary on

Count I and to ten (10)

years and one (1) day in the

State penitentiary on Count

II as punishment for his

crime. These sentences

shall run concurrently with

each other. Defendant is -

ordered to pay $1,800.00

restitution plus court costs.

(TE. 22}.

The Petitioner, Jackie Dallie

Arrant, filed a motion for a new trial

on October 1, 1985 and such motion was

denied by the Circuit Court of Geneva

County, Alabama on November 1, 1985.

(TR. 24, 32). However, the Petitioner's

application for probation was granted as

follows: "The Court sentences the

defendant to three (3) years in the

state penitentiary and grants probation

for the remaining seven (7) years and

one(1) day under the terms and condition

ali 4

of order of probation this day

imposed." (TR. 33). Notice of Appeal

to the Alabama Court of Criminal Appeals

was filed on behalf of Petitioner on

December 11, 1985. (TR. 35).

y

APPEAL

On direct appeal to the Alabama

Court of Criminal Appeals and on

application for rehearing in that court

the petitioner presented the following

issues:

I. Whether the trial court

committed reversible error

in overruling Appellant

Arrant's motion for a

mistrial based on an

allegedly improper remark

made by the prosecution in

its closing argument

regarding co-defendant

Joseph Ruben Jones' failure

to testify?

Il. Whether the verdict and

judgment of the trial court

was void as it was based on

a defective indictment?

Ill. Whether the trial

erred in overruling

Appellant Arrant's motion to

exclude the evidence and in

allowing a suit of clothing

to be admitted into evidence

as State's Exhibit 17

IV. Whether the trial court

erred in sustaining a motion

to exclude the testimony of

J. W. Griffith by the

prosecution?

Vv. Whether the State of

Alabama failed to meet the

requirements of Section

12-21-222, Code of Alabama

(1975) regarding an

accomplice's testimony on a

felony conviction?

The Alabama Court of Criminal

Appeals affirmed the Petitioner's

conviction on May 12, 1987, without

written opinion. On June 9, 1987 the

Alabama Court of Criminal Appeals

overruled the Petitioner's application

for rehearing, without written opinion.

3.

CERTIORARI IN THE ALABAMA

Ss COURT

The issues and brief presented to

the Alabama Supreme Court were identical

to the issues and brief argued on direct

appeal and rehearing. The Alabama

Supreme Court denied the Petitioner's

petition for writ of certiorari on

August 28, 1987 and this appeal follows.

SUMMARY OF THE ARGUMENT

1. The privilege against

self-incrimination as guaranteed by the

Fifth Amendment is a purely personal

right which cannot be vicariously

asserted. Bellis v. United States, 417

U.S. 85, 87, 40 L.Ed.2d 678, 683, 94

S.Ct. 2179 (1974); Couch v. United

States, 409 U.S. 322, 327-328, 34

L.Ed.2d 548, 93 S.Ct. 611 (1973).

Therefore, the Petitioner has no

standing to assert the Fifth Amendment

rights of his co-defendant and thus the

petition for writ of certiorari is due

to be denied.

2. The Petitioner slso argues

that his right against

self-incrimination as gekeeateoa uy the

Alabama Constitution was denied. This

is purely a matter of state law and is

therefore not an issue reviewable by

this Court. International

Longshoremen's Association v. Davis, 476

U.S. , 90 L.Ed.2d 389, 398, 106

8 .Ce: (1986); Manhattan Life

Insurance Company v. Cohen, 234 U.S.

123, 136, 58 L.Ed. 1245 (1914).

Therefore, for the reasons herein cited

the writ is due to be denied.

ARGUMENT

I.

THE PETITIONER HAS NO

STANDING TO QUESTION AN

ALLEGED COMMENT ON THE

FAILURE OF HIS CO-DEFENDANT

TO TESTIFY AS THERE HAS BEEN

NO VIOLATION OF PETITIONER'S

FIFTH AMENDMENT RIGHT

AGAINST SELF-INCRIMINATION.

The Petitioner argues that his

Fifth Amendment right against

self-incrimination was violated when the

prosecution allegedly made a comment in

closing argument regarding his

co-defendant Jones' failure to testify.

It is unclear from the record exactly

what the prosecutor said in closing

argument that Petitioner finds

Objectionable. Defense counsel argued

in the motion for new trial that the

comment was “You only heard the

testimony of one defendant." (The

Petitioner, Jackie Dallie Arrant,

testified at trial in his own behalf;

o

his co-defendant did not). The

prosecution recalled the comment as

being "that only one witness took the

stand for the defense". |

The Petitioner couches his

argument in terms which suggest that his

Fifth Amendment right against

self-incrimination was violated by this

remark by the prosecution regarding his

co-defendant's failure to testify.

However, since the Petitioner testified

and his co-defendant did not, clearly

the Petitioner is attempting to assert

his co-defendant's Fifth Amendment

rights.

It has been well established by

this Court that the privilege against

self-incrimination afforded by the

United States Constitution, Fifth

Amendment, is purely personal to the

individual and that an individual can

10

not assert the Fifth Amendment rights of

another. See, e.g., Rakas v. Illinois,

439 U.S. 128, 140, 58 L.Ed.2d 387, 399,

99 S.Ct. 421 (1978); United States v.

Nobles, 422 U.S. 225, 233, 45 L.Ed.2d

141, 150, 95 S.Ct. 2160 (1975); Bellis

v. United States, 417 U.S. 85, 87, 40

L.Ed.2d 678, 683, 94 S.Ct. 2179 (1974);

Couch v. United States, 409 U.S. 322,

327-328, 34 L.Ed.2d 548, 93 S.Ct. 611

(1973); United States v. White, 322 U.S.

694, 698-699, 88 L.Ed. 1542, 64 S.Ct.

1248 (1944); McAlister v. Henkel, 201

U.S. 90, 91, 50 L.Ed. 671, 672 (1905).

In the instant case, Petitioner

seeks to raise claims relating to the

Fifth Amendment rights of his

co-defendant. Under constitutional law,

“a litigant has standing to seek redress

for injuries done to him, but may not

seek citiddiie for injuries done to

11

others". Laird v. Tatum, 408 U.S. l,

14, 33 L.Ed.2d 154, 164, 92 S.Ct. 2318

(1972). See, e.g., Broaderick v.

Oklahoma, 413 U.S. 601, 610, 37 L.Ed.2d

830, 839, 93 S.Ct. 2908 (1973); McGowan

v. Maryland, 366 U.S. 420, 429-430, 6

L.Ed.2d 393, 401, 81 S.Ct. 1101 (1961).

The Petitioner seeks not redress

for violations of his own constitutional

rights; rather he seeks redress for

injuries allegedly suffered by his

co-defendant Joseph Ruben Jones.

Therefore, as the Petitioner has no

standing in constitutional law to assert

the Fifth Amendment rights of his

co-defendant the petition for certiorari

ig due to be denied.

12

at.

In his brief to this Honorable

Court, the Petitioner also argues that

his right against self-incrimination as

guaranteed by the Alabama Constitution

was violated. This is not an issue

properly brought before the United

States Supreme Court as it is a matter

of state interpretation of state law.

(The Alabama Constitution). The United

States Supreme Court has no authority to

review state determinations of purely

state law. International Longshoremen's

Association v. Davis, 476 U.S. , 90

L.Ed.2d 389, 398, 106 S.Ct. ___—s-—« (1986);

Manhattan Life Insurance Company v.

Cohen, 234 U.S. 123, 136, 58 L.Ed. 1245

(1914).

Since the Alabama court's

determination of the state constitution

is a matter of state law this issue is

13

not one reviewable by this Court and the

petition for writ of certiorari is due

to be denied.

CONCLUSION

In conclusion, the Respondent

submits the following:

1. The Petitioner has no

standing to assert his co-defendant's

Fifth Amendment cight against

self-incrimination.

2. The issue involving the

constitw’ ion of Alabama is solely one of

state law and therefore not within the

jucisdiction of this Court.

14

Therefore, the Respondent prays

that the writ will be denied.

Respectfully submitted,

DON SIEGELMAN

ATTORNEY GENERAL

BY-

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

15

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APPENDICES

ee

ee i

§13A-8-3. Theft of property in the

first degree.

(a) The theft of property which

exceeds $1,000.00 in value, or property

of any value taken from the person of

another, constitutes theft of property

in the first degree.

(b) The theft of a motor vehicle,

regardless of its value, constitutes

theft of property in the first degree.

(c) Theft of property in the first

degree is a Class B felony.

§13A-7-5. Burglary in the first degree.

(a) A person commits the crime of

burglary in the first degree if he

knowingly and unlawfully enters or

remains unlawfully in a dwelling with

intent to commit a crime therein, and,

if, in effecting entry or while in

dwelling or in immediate flight

therefrom, he or another participant in

the crime:

(1) Is armed with explosives or a

deadly weapon; or

(2) Causes physical injury to

another person who is not a participant

in the crime; or

(3) Uses or threatens the immediate

use of a dangerous instrument.

(b) Burglary in the first degree is a

Class A felony.

17

CERTIFICATE OF SERVICE

I, Joseph G. L. Marston, III, an

Assistant Attorney General of Alabama,

do hereby certify that I am a member of

the Bar of the Supreme Court of the

United States and, as one of the

Attorneys for the Respondent, I hereby

certify on this _ day of February,

1988, 1 did serve the requisite number

of copies of the foregoing on the

Attorney for Jackie Dallie Arrant,

Petitioner, by mailing the same to said

Attorney, first-class postage prepaid

and addressed as follows:

Honorable J. E. Sawyer

P. O. Box 150

Enterprise, Alabama 36331

JOSEPH G. L. MARSTON, III

ASSISTANT ATTORNEY GENERAL

ADDRESS OF COUNSEL:

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 261-7300)

18