# Opposition Brief — Arrant v. Alabama

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0479%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 976

## Text

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.

ii

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_0479%3A2. Public record. Not legal advice.