Opposition Brief — Tennessee v. Cauthern

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Suprame Court, U.S.

FILED

No. 89-915 | MAR 30 18

JOSEPH F. SPANIOL, JR.

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In The i

Supreme Court of the United States

October Term, 1989

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STATE OF TENNESSEE,

Petitioner,

VS.

RONNIE M. CAUTHERN,

Respondent.

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On Writ of Certiorari To The

Supreme Court Of Tennessee At Nashville

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RESPONSE TO PETITION FOR THE

WRIT GF CERTIORARI

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HucH Reip PoLanpn, Jr.

PoLAND & POLAND

Attorneys at Law

408 Franklin Street

Clarksville, Tennessee 37040

(615) 552-3475

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW

BY PETITIONER

1. Whether the Supreme Court of Tennessee imper-

missibly expanded the scope of Miranda v. Arizona in

concluding that the respondent invoked his right to re-

main silent by merely refusing to make a truthful state-

ment and by indicating a desire to not have his statement

tape recorded?

2. Whether the alleged Fifth Amendment error was

harmless beyond a reasonable doubt?

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TABLE OF CONTENTS

Page

Questions Presented for Review ................... i

Table of Authorities . 3.4503 sree ae i ili

Opinion Below’ ..6c. 23554508 A dt ne Lee ee 1

Jurisdiction... .. ......0.3 55 eee 2

Constitutional Provision Involved.................. 3

Statement of the Cas@: ...i.¢55a ee ees 4

Reasons for Denying (he SHRREs 40077) <eesee sts 4

Conclusion . . oo 6 sscc 0s 0 ere ieee ee 7

Appendix:

A — Opinion of the Supreme Court of Tennes-

SS SI er ye ee App. 1

B — Respondent's Tape Recorded Statement....App. 1

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TABLE OF AUTHORITIES

Estelle v. Smith, 451 U.S. 454 (1981) ...

Miane v. Moulton, 474 U.S. 159 (1985) .

Michigan v. Mosley, 423 U.S. 96 (1975).

Miranda v. Arizona, 384 U.S. 436 (1966)

Satterwhite v. Texas, 486 U.S. 249 (1988)

Tague v. Louisiana, 444 U.S. 469 (1980).

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No. 89-915

eo

_.

In The

Supreme Court of the United States

October Term, 1989

sé,

4

STATE OF TENNESSEE,

Petitioner,

VS.

RONNIE M. CAUTHERN,

Respondent.

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4

On Writ of Certiorari To The

Supreme Court Of Tennessee At Nashville

a

-

RESPONSE TO PETITION FOR THE

WRIT OF CERTIORARI

a

—

OPINION BELOW

The Respondent adopts by reference and incorpo-

rates the language of the Petitioner as set forth in its

“Opinion Below” and also adopts by reference and incor-

porates Appendix A and B of Petitioner.

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JURISDICTION

The petitioner has stated this Court’s Jurisdiction is

invoked under 28 U.S.C. § 1254(1).

We submit this is not proper. If this Court’s jurisdic-

tion is invoked at all, it would he under 28 U.S.C. § 1257,

“Jurisdiction To Review Decisions of State Courts.”

There are two major routes by which cases in state

courts may reach this Court - appeal and certiorari. Un-

der either method, this Court’s jurisdiction depends upon

the federal character of the question or questions at issue.

One must first choose between these two alternative

means. The petitioner, may ask this Court to review the

judgment of the Tennessee Supreme Court by selecting

either § 1257(1) or § 1257(2) or § 1257(3).

The first two choices are reviewed by appeal and the

third by certiorari. To proceed at this point respondent

must assume petitioner would have selected the third

choice, certiorari, since that is what petitioner selected

under § 1254(1), erroneously.

Under-§ 1257(3), this Court’s jurisdiction by way of

certiorari to review, manifests itself in three situations: (1)

where the validity of a federal treaty or statute is drawn

in question; (2) where the validity of a state statute is

drawn in question on the grounds of its being repugnant

to federal law; and (3) where a title, right, privilege, or

immunity is set-up or claimed under the Constitution,

treaties or statutes of, or commission held or authority

exercised under, the United States.

The first two of the above situations related to the

same types of federal issues as underlie the right to

appeal to this Court under § 1257(1) and § 1257(2).

The third situation above, finds no counterpart in

thissCourt’s jurisdiction, by way of appeal. In such cases,

this Court’s jurisdiction can only be invoked by a petition

for certiorari.

In short, §1257(3) covers the entire range of federal

questions that may arise in a case in a state court. All

such questions are within the certiorari jurisdiction of

this Court.

Respondent further submits this case is “not final,”

when considering the options available to the state, upon

retrial.

At this juncture, respondent respectfully asks this

Court to deny the petition for writ of certiorari by object-

ing to petitioner’s failure to properly invoke jurisdiction,

and because the proceedings below are not final.

Upon reviewing the Rules of the Supreme Court of the

United States, in particular Rule #15.4, respondent though

objecting to jurisdiction, must continue to reply to the

petition for writ of certiorari.

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CONSTITUTIONAL PROVISIONS INVOLVED

U. S. CONSTITUTIONAL AMENDMENT YV:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offence to be

twice put in jeopardy or life or limb; nor shall be

compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or

property, without due process of law; nor shall

private property be taken for public use, with-

out just compensation.

U. S. CONSTITUTIONAL AMENDMENT VI:

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have com-

pulsory process for obtaining witnesses in his

favor, and to have the assistance of counsel for his

defense.

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STATEMENT OF THE CASE

Respondent, adopts by reference and incorporates

the petitioner’s Statement Of The Case.

REASONS FOR DENYING THE WRIT

1. The Supreme Court of Tennessee, did not ex-

pand the scope of Miranda v. Arizona, 384 U.S. 436

(1966).

Under, Miranda, this Court established procedural

safeguards to protect defendants under custodial inter-

rogation.

Once adversary proceedings have begun the Sixth

Amendment right to counsel is violated when the State

knowingly exploits the opportunity to record statements

of the accused made in the absence of counsel, even

though the meeting was requested by the accused. Miane

v. Moulton, 474 U.S. 159 (1985).

If questioning continues after warning, a heavy bur-

den rests on the state to show a waiver was knowingly

and intelligently waived. Tague v. Louisiana, 444 U. S. 469

(1980).

Procedural safeguards established by the Court to cut

off questioning, require the authorities to immediately

cease interrogating an accused, once the accused indi-

cates in any manner, at any time prior to or during

interrogation, tnat he does not wish to continue; Miranda

v. Arizona, 384 U. S. 96 (1966); Michigan v. Moseley, 423

U.S. 96 (1975).

Law enforcement can talk with Defendant even after

Miranda so long as Defendant doesn’t say or indicate he

wants his lawyer. Once warnings have been given, the

subsequent procedure is clear. If the individual indicates

in any manner, at any time prior to or during question-

ing, that he wishes to remain silent, the interrogation

must cease. At this point he has shown that he intends to

exercise his Fifth Amendment privilege; any statement

taken after the person invokes his privilege cannot be

other than the product of compulsion, subtle or other-

wise. Without the right to cut off questioning, the setting

of in-custody interrogation operates on the individuai to

overcome free choice in producing a statement after the

privilege has been once invoked. 384 U.S. 436.

Respondent submits the details given in the third

statement and its subsequent submission to the jury were

a key factor in respondent receiving the death penalty ~

and his co-defendant Patterson receiving a life sentence.

The respondent asks this Court to consider the total-

ity of the circumstances surrounding the entire interroga-

tion process (Appendix B, App. 23-59). We submit that

the Miranda decision does require the Supreme Court of

Tennessee to reach the decision it did and that the State

court did not expand the scope of Miranda beyond the

rulings of this Court.

2. The alleged Fifth Amendment error was not

harmless beyond a reasonable doubt.

Throughout trial the co-defendants acted in concert.

They both wore ski-masks, gloves, and carried pistols.

Both broke into the residence. Both participated in the

murders of both victims and raped Mrs. Smith. (Appen-

dix A, App. 8-9)

In the Satterwhite case, this Court ruled the admis-

sions of testimony were not harmless, because the lower

court could not say beyond a reasonable doubt that the

testimony did not influence the sentencing jury, even

though the other testimony would support the death

sentence. The question is not whether the legally admit-

ted evidence would support the death sentence, but

whether the state has proved beyond a reasonable doubt,

that the error complained of did not contribute to the

verdict of death Satterwhite v. Texas, 486 U.S. 249 (1988);

Estelle v. Smith, 451 U.S. 454 (1981).

In respondent’s case, the State court cannot say that

the admission of the contents of the defendant’s state-

ment recorded on the second secretly hidden tape re-

corder, did not have any effect on the verdict of death

and that its admission was not harmless error beyond a

reasonable doubt. (Appendix A, App. 12-16 and 18-20)

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CONCLUSION

For the reasons stated, the respondent urges this

Court to deny the writ of certiorari.

HuGH Reip POLAND, Jr.

PoLaAND & POLAND,

Attorneys at Law

408 Franklin Street

Clarksville, Tennessee 37040

(615) 552-3475

Counsel for Respondent

App. 1

APPENDIX A & B

Respondent Adopts by Reference and Incorporates the

Appendices of the Petitioner.