Petition for a Writ of Certiorari — Procter & Gamble Independent Union v. Procter & Gamble Manufacturing Co.

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SUPREME COURT OF THE

UNITED STATES

1068.

No. &

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A VICTOR MAIN, >

* Petitioner,

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THE STATE: OF FLORIDA,

Respondent.

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"PETITION FOR WRIT OF CERTIORARI TO THE" ¢

DISTRICT COURT OF APPEAL FOR THE THIRD |

© ° DISTRICT OF FLORIDA

ALFRED M. CARVAJAI

and FREQ PATROX

Attorneys for Petitioner

*1000 Ainsley Building

Miami 32, Florida

INDEX

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INTRODUCTION ° Te Tae

OPINIONS OF THE FLORIDA COURTS 7 2

JURISDICTION OF THIS COURT 2

QUESTION PRESENTED FOR REVIEW © 2

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CONSTITUTIONAL PROVISION INVOLVED

STATEMENT OF TYE CASE, ene

ARGUMENT

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APPENDIX | App. 1

_ CERTIFICATE OF SERVICE

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_— TABLE OF CASES

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American Radway Evpress Co.-v. Levee,

263 U.S. 19,68 L.Ed. 140, 44 8.00.1)

Betts v. Brady. ,

316 U S. 455, 86 1 Fd, 1595, 62 S.Ct. 1255

Gordon r. State,

Fla. 1958, 104 Sé.2a 524

r *.

Q

Henderson vr. State,

135 Fla. 548. 185 So. 625

Ingram y. oo peas

111 Fla. 34 . 149 So. BH

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Trivin v. Dowd,

8

866 US. 717, 6 L.Ed.2d 751, 81 S.Ct. 1639, *

ln re Murchison, ;

349 US. 133, 99 L.Ed. 942. 75

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Roberts y. State,

72 Fla. 132, 72 So. 649

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Tumey v. Ohio,

273 U S. 510, 41 L.Ed, 749, 47 §

Varnum v. State,

SCL 623 °

S.Ct. 437

137 Fla. 438, 188 So. 346

Western Union Tel. Co. v. Crovo,

220 US. 364, 55 L. Ed. 498, 318 Ct. 399

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{35 UTHER’ AUTHORITIES

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Const vation Ot the United States :

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. Amendment MEV. Section 1 - . eo

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: itt ( wd td Juris Pa] HUE btm $ :

Cormeen! Lace. Section SUS ai. pp 71-s0 bas

Cromina!l Law, Section SOS b. pp. SO-%'] o.

J! A Corpus Juris Sectndum, '

Ra Cromenal Law, Section 682. pp. T29-737 ae

Clones Jiyvis Secunda, ° a + .

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Judges, Section SDdalp. 1058 8

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Florida Statutes, Florida Statutes Annotated

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; et ie wehUctay F :

aeaneaah, r : 2

YN bon ted States Code,

Section 12573) 2

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IN THE

"SUPREME, COURT OF THE

UNITED STATES”.

No.

ia VICTOR MAIN,

| j J Petitioner,

-vs-

THE STATE’OF FLORIDA,

“ ; ira | | { ‘ _ Respondent.

—_—_——

PETITION. FOR WRIT OF CERTIORARI TO THE

DISTRICT COURT OF APPEAL FOR THE THIRD

. DISTRIC T OF FLORIDA }

INTRODUCTION

° °

Petitioner, Victor Main, respectfully, prays that a

writ, of certiorari issue to review a judgment of the Dis-

trict Court of Appeal for the Third District of Florida.

such judgment, the intermediate appellate? court affir red

petitioner's conviction’ for a crime. against nature. Ref-

erence to the transcript of record ‘two yolurhes! shall be

made by “Tr. “: and to. tQ@ Appendix ‘annexed: by.

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OPINIONS OF THE FLORIDA COURTS

The trial court below rendered no opinion. The opin-

jon of the District Court of Appeal appears in the Ap-

pendix ©App. 1), and is reported at 143 So.2d 221. The

Supreme Court of Florida’s memorandum denial of cer-

tiorari is ulso.€0 be found in the —s App. 2), and

is reported at “49 So.2d 47. ;

JURISDICTION OF. THIS COURT

The judgment presented for review was filed on June

26, 162. App. 1+: and a petition for rehearing was denied

thereafter | Tr. 10'. By order entered December 19, 1962,

the Supreme Court of Florida declined to review the iitter-

mediate decision by certiorari «Tr. 11); and, on January

24, 1963, denied a timely petition for rehearing (Tr. 210-

212). :

, This Court has jurisdiction to review the judgment,

complained of by-writ of certiorari. 28 U.S.C. section

W573): American Radway Eutp ress Ca ¢t. Levee, 263

US, 19, 68 L.Ed. 140. 44 S.Ct. 11; Western Union Tel. Co.

c rove, 220 U.S. 364, 55 L-Ed. 498, 31 S.Ct. '399.

QUESTION PRESENTED FOR REVIEW

IS THE FEDERAL REQUIREMENT FOR

DUE PROVCESS OF LAW VIOLATED BY A

CRIMINAL COURT JUDGE WE9, SITTING

WITHOUT A JURY, CONTRACTS FOR THE

TESTIMONY OF sSTHE-. PROSECUTION’S

CHIEF WITNESS AND SU SPECTS, BEFORE

HIS FINDING OF GUILT, THAT THE DE-

FENDANT ATTEMPTED TO SUPPRESS

SUCH TESTIMONY?

tution is,

‘Tr. 30-31).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the Federal Consti-

“Section 1. All persons born or naturalized in

the United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge the

privileges or immunities of citizens of the United

States; nor shall any State deprive any person of

life, liberty, or property, without due process of

law; nor d&hy to any, person within its jurisdic-

tion the equal protection of the laws.” .

STATEMENT OF THE CASE

in pertinent part. as follows § The Coustitution

of the United States of America: UL S. Gov't Printing ne

fice, 1953 editi®n, p.45':

The petitioner was, by information, chargéd with

having committed the crime against nature with

Cayetano Terreros (Ty. 14-15'. At his arraignment the

petitioner entered a not guilty plea and -

(Tr. 16). wv

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Waived jury tr ial

The ¢: ase duly came to trial before a criminal court

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judge, sitting without. a jury (Tr. 28). The aforemen-

‘tioned Terreros, the first. witness called by the respondent

State, appeared with counsel of his own, and, invoking the

privilege against self-incrimination, refused to testify

The possibility of granting immunity to the

reluctant witness was then suggested by the trial judge

to the prosecutor, but no conereté result: was obtained

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«Tr. 32-37). The trial judge interpolated a hearing on

the privilege issue, and eventually ruled that, having

waived such privilege, Terreros must testify-+Tr. 74-75) :

“... At this’ time the Court directs the witness

to ‘testify in this cause and to answer questions

set forth by the: prosecuting attorney, in this

court. :

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“T will give you ‘an opportunity, counsel, to'‘advise

your client. However, I want to remind-you and

. I hope you don’t ¢hink this is a presumption on

my part,.but J ivant to remind you to make cer-

tain in your @ounsel to the witness that you have >

no concern for any interests other than this wit-_

ness, any adverse interest of any other parties,

You are not to be concerned with this, of course;

otherwise, perhaps you better not advise him.”

or supplied)

Terreros persisted in his silence, and was held in contempt

of court and sentenced to serve six months in jail” (Tr.

75-76). 4 :

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The trial was recessed until] the next porning, at

which timé one Robert Henry Myer was the first witness

called by the respondent ‘Tr. 791. He too refused to tes-

tify, invoking the privilege against self-incrimination (Tr.

80'. The court interpolated a hearing on this issue (Tr.

81-113). However, the frial judge never reached a ruling

on Myer’s asserted privilege. Terreros, incarcébated since

the first day of trial (Tr. 149) 4 notified the court that

second afternoon that he would testify; and “Myer did the

same (Tr.113). Terreros appeared in court. but, before

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testifying, usked the judge whether or not he would be

prosecuted for the sme crime as the petitioner (Tr. 114).

At that point, belatedly taking the cu given the day be-

fore, the prosecutor announced that Terreros.gvould not

be prosecuted for the crime that his testimony would re-

veal’ Tr. 114). The trial judge immediately “approve|d|"

the agreement, and “assure/d|”” the witness that he would

not be prosecuted (Tr-114). . i

* ‘The ‘trial court vacated its contempt order, and the

RE OeeS trial was resumed (Fre115-1174+. Terreros’-

testimony, if believed by the trial court, was sufficient to

prove the act described in the Information ¢Tr. 117-167).

Myer’s testimony. if believed by the’ trier of fact, estab-

lished that the petitioner had committed a similar act

with Myer ‘not charged in the Informatio#' about seven

months before the crime charged (Ti, 162-174). The thira

and last witness at’ the trial testified .simply that he had

arrested The petitioner (Tr. 175-176) 2

“The trial Judge found the petitionerguilty as charged.

and later sentenced him to prison fer an indeterminate.

period of six months to sevén years ‘Tr. 24, 182). im- |

mediiztely : after the finding of guilty, the trial judge ex-

cused the petitiover and his attorney from the courtroom.

The court then initiated a hearing which was obviously

invoked ‘by the trial judge ys a result of his suspicion that

the petitioner had attempted to suppre ss the testimony of

Terreros and‘or Myer before the trial (Tr. 171-202).

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Terreros had become a member of the United States

Army some three months. before the trial: Tr. 301. The

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trial judge, referring to ‘such status at the extraordinary

post-trial herring, said (Tr. 191-192) :

*« . . We don’t have too much control over that

or what the Army will do. All I can tell you is

‘you will not be prosecuted for eny of these mat-

ters. If any charges are brought against you

concerning these matters, if you will tell your su-

periors to contact me, I will be glad to do every-

thing I can to discourage them from carrying it

any further... . I will do everything I can to

help vou out.” ; :

“We have entered into this agreement and T will

do everything I can and I am sure the State At;

torney’s office will.” ‘emphasis supplied)

Since the record does not otherwise reveal any, “agree-

ment” between the trial judge and the respondent’s in-

dispensable witness, the inference is inescapable that it

was solemnized somewhere outside the courtroom!

Petitioner and his counsel had no knowledge of the

extraordinary hearing until twenty eight) days after it.

hdd occurred (Tr. 245-246). Thus, petitioner’s .ttorney

had no indication of the manifest prejudice the invocation

aid conduct of such hearing rgvealed, until after the time

for filing a motion for new trial had expired.. Section

: "9 20.02(3), Fla.Stat., F.S.A.

The petitioner appealed from the judgment of conyic-

tion to the Third District Court of Appeal of Florida ‘Tr.

251. His brief contended that he had been denied “the

cold neutrality of an impartial trial judge” (Tr. 221) in

Violation of “the 2 appt guarantees which constitite

fair trial’ «Tr. 222). His counsel contended on oral argu-

‘ment that “the trial court’s prejudiced conduct of the peti.

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tivner's trial constituted a violation, of the due process of

law required by the Federal Constitution” «« Tr. 248).

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The intermediate appellate court held that the trial

judge was impartial (App. 1). and.by necessary implica~

tion, that the tial judge’s condfict was not violative of

the due process Commandments. -The Supreme Court of

Florida refused. to review that) decision by certiorar!

2.) 6 ’

App. 2 : /

“ARGUMENT

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* This Court has held that a fair trial in a fair tribunal

is a basic requirement of due process, and “our system of

law has always endeavored to prevent even = probability

of urfairness, 2.2.07 Tn ore Mareh son, 349 U.S, 133,136, 09

L.Ed. 942.046, 75 S.Ct. 622. The Fourt pons Amendment

probfhits the eonviction of a,defendant “whese trial is of-

fensive to the common and fundamental ideas of fairngss

and right. ....” Brits yr, brady, (WAU US. 455.473, 86 1.

1565.1607, 62 S.Ct. 1252. Thus. the failure to accord an

accused a fair hearing violates “even the minimal stand-

ards of due*process” [reise Dorred, 266 US AB B722,

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6 L.Ed.2d 751,755, 81 S.Ct.-1639. sa

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In Hes dersene er, State, 135 Fla. 548, 185 So, 625-627- >

&, the Supreme Court of Flérida' held that the trial court

should not matce teelf a party fey (Lb Tbe nity ware ment

hetivcen the State ee a press c uting wetuess, In the ense

sub judice, thé trial judge himself first suggested that the

respondent immunize the reluctant witnesses, and, by his 2

/ own_admission at the post-trfil hearing, he became a party &ay”

The + specially concurring opinion by Brown, 1. was apparentl

approved by a nrajority of thegCourt. * ;

to the “agreement”. Indeed, he offered to spread the man-

‘tle of his office as a shield between the chief witness

and the prospective disgruntlement of the United States

Army, supra, p. 6.

Having apparently, bargained for and obtained Ter-

reros’ testimony, which was’ th® only evidence that could

have proved the crime charged in*the Information, the

trial judge obviously proceeded, as trier of fact, to deter-

mine its credibility. In Florida, as elsewhere, the testi-

mony of an accomplice is not favored, and must be re-

ceived witlf great caution. Roberts v. State, 72 Fla. -132,

72 So.4H49,650; Varnum v. State, 137 Fla. 438, 188 So.

346,351; 16 C.J.S., Criminal Law, section 808 a, pp. 71-80.

The “great caution” rule is most strictly applied, where,

as here, the zccomplice obtains immunity as a premium for

his treachery. Id., section 808 b, pp. 80-81; Jngram v. Pres-

cott, 111 Fla. 320, 149 So. 369.

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It was uncorscionable for the Florida appellate court

to hold that@the trial judge, having personally shucked the

pearl of testimony from the unwilling oyster, could have

received the jewel With “great caution”. Since bias or

prejudice ure states of mind, circumstantial prof of their

existence must ordinarily suffice. 48 C.J.S., Judges, see-

tion 82 @, p. 1058.

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The State of Florida follows the general rule that

when a defendant ison trial for a particular crime, it is

improper to admit ¢Vidence of unrelated collateral crimes.

Gordon v. State, Fla.1958, 104 So.2d 524,533; 22A C.I.S.,

Criminal Lai, section 682, pp. 729-737. Clearly, then, if

the petitioner had been tried by a jury, the admission eof

evidence proving that he attempted to suppress the testi

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mony of two of the State’s witnesses would have been re-

versible error. See Gordon v, State, supra. Just as clearly.

the trier of fact here suspected such an unrelated collateral

crime before he reached his “impartial” verdict. Since

there was no evidence adduced between the vuilty verdict

and the extraordinary post-trial hearing (Tr. 182-183),

it is manifest that the trial judge suspected such chican-

ery es! he reached his verdict, Indeed. his remarks to

Terreros’’counsgl, on the previous day, supra, p. 4, were

storm warning yf the whirlwind of suspicion that later

‘engulfed the Be oa right to a fair trial by an im-

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partial judge.

In view of all the aforestated circumstance es, the pe-

_titioner certainly was denied a rudime ntary: Fequirement

"of “due process”, Le.. the cold neutrality of an partial

judge. As this Court said in Tumey « | heb? 3 US.

510,532, 71 L.Ed. 749.758, 47 @Ct. 437, 50° NLR. 1245:

“ .. . the requirement of due process of law in

judicia! procedure is not satisfied by the argu-

~ ment that men of the highest honor and the great- .

est self-sacrifice could carry it on without danger

of injustice. Every proeedure which would offer

a ak temptation to the average man us a

- judge.to forget the burden of proof. required to

convict the defendant, or which might lead him

not to hold the balance nice, clear, and true be-

tween the state and the accused denies the latter

due process of law.”

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It becomes imperative, then, for this Court- to issue its

writ gf certiorari and review the decision of tH® Florida

Court which held that the instant trial judge's actions

comported with the federal requirement for “due process”.

Respect filly submitted,

..

; Abed M Caruagal

: ~ ALFRED M. CARVAJAL :

es and FRED,,PATROX

roa 7 Attorneys for Petitioner

as. - 1000 Ainsley Building

Miami 32, Florida

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Legere App. 1 gg

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

THIRD DISTRICT

JANUARY TERM, A.D. 1962

Paid

i °

7 CASE NO. 61-662

VICTOR MAIN.

‘Y

. VS.

THE SEATR OF FLORIDA,

ppeliiars

Apnellee

~ FEORIDA CIVIL LIBERTIES UNION,

f Amicus Curiue.

Opinion filed June 26, 19628

An Appeal from thesCriminal Court of Record for

Dade County, Gene Williams. Judge. -

Frederick O. Scheske, for appellant.

Richard W. Etvin, Attorney General, and David 4’.

Tumin, Assistant Attorney General, for appellee.

Robert J. Ramer and Simono&—-Résen. for Amicu-

Curiae.

Before CARROLL. BARKDULL and HENDRY. J.

PER CURIAM. [

The defendant-appellee Was convicted of a crime

againsttnature. “Phe trial was without ¢@bry in the Crim-

inal Court of Record for Dade:County. —

The appellant céntends that, he was not afforded the

cold neutrality of an impartial trial judge. Wo have care-

fully examined the record and considered the question

raised by, the appellant and find it to be without merit.

Affirmed. e

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(IN T@&E SUPREME COURT OF FLORIDA

JULY TERM, A.D. 1962 |

WEDNESDAY, DECEMBER 1. 1962

CASE NO. 31,992

VICTOR MAIN,

@ ° Petitioner.

‘

Vs. :

THE STATE OF FLORIDA, a

3 Respondent.

‘This cause having heretofore been submitted to the

Court on Petition for Writ of Certiorari upon the tran-

script of record and briefs to review the order of the Dis-

trict Court of Appeal of Florida, -Third District. in said

cause bearing date June 26, 1962, and the record having

-been inspecter, it is ordered that said Petition be and the

sume is hereby denied.

Pa abe

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CERTIFICATE OF SERVICE

1 DO HEREBY CERTIFY that a true copy of the

foregoing Was mailed to the office. of. the Attorney Gen-

ge State of Florida: .1350 N.W_ 12th Avenue: Miami

. Florida: this Fo # vss of April, 163; by depositing

same ina U nited States Mail Box, with first class postage

_ prepaid, addressed to the foregping post effice address.

Alfred M. Carajal

ALFRED M. CARVAJAL ~

Of Counsel for Peti¥oner