Opposition Brief — Beto v. Graves

7 ca FILED

UPREME COURT, U. —

S NOV 23 1970

E. ROBERT SEAVER, CLERK

In the

| . Supreme Court of the United iin

OCTOBER TERM, 1970

Davi Jessie GRAVES,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

_ for the Fifth Circuit

MEMORANDUM FOR BAVID JESSIE GRAVES

IN OPPOSITION

Wetpon Hotcoms, Esq.,

Counsel for Respondent,

111-B N. Spring,

Tyler, Texas 75701.

THE WARLICK PRESS DIVISION, STECK-WARLICK CO.

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llamo

CITATIONS

7 Page

Cases

Schmerber v. United States, 86 S. Ct. 1826 (1960) ..... 2

Fay v. Noia, 372 U.S. 391, 83 Sup. Ct. 822 (1963) ....... 3

Mize v. Crouse, 399 Fed. 2nd, 593 (Tenth

eS i a nner 3

Harris v. Beto, 387 Fed. 2nd, 149 (J'ifth Circuit 1967) ... 3

Frazier v. Cupp, 394 U.S. 731 (1969) 00.0. 4

2

In the

Supreme Court of the United States

OCTOBER TERM, 1970

No. 536

Dr. GeorcE J. Beto, Director,

Texas DEPARTMENT OF CORRECTIONS,

Petitioner,

v.

Davip JESSIE GRAVES,

Respondent.

Petition for Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

MEMORANDUM FOR DAVID JESSIE GRAVES

IN OPPOSITION

Davin JESSIE GRAVES was tried and convicted in the State

Courts for the State of Texas. He was and is confined in

the Texas Department of Corrections as a result of such

conviction. Habeas Corpus proceedings were filed in the

State Courts. Adverse decision resulted in filing of Habeas

Corpus proceedings in the Federal Court for the Eastern

2

|

District of Texas, Tyler Division, Honorable Wayne Justice

presiding.

_ Counsel appointed for indigent petitioner by the Court.

Proceedings on petition for Writ of Habeas Corpus heard

April 21, 1969, in District Court of the United States for

the Eastern District of Texas, Tyler Division. (App. pg 14)

The District Court granted Petitioner’s Writ by Memoran-

dum Opinion reported at 301 F. Supp. 264 (1969) (Appen-

dix “B” of Petition for Writ of Certiorari) The action of

the District Court being affirmed in Opinion of Court of

Appeals for the Fifth Circuit located at 424 Fed. 2nd, 524

(1970) and also Appendix “A” of Petition for Writ of Cer-

tiorari.

A stay of mandate was granted by the United States

Court of Appeals to and including August 24, 1970, Appli-

cation for Writ filed with the Supreme Court of the United

States. The writer agrees with the result reached in the

Opinions of the District Court as well as the Court of

Appeals for the Fifth Circuit and feels -strongly that the

result is correct. However, Counsel also feels that the par-

ticular points involved-in this cause are Constitutional stat-

ure and that for the clarification of the Constitutional as-

pects of the matter that the Honorable United States Su-

preme Court should grant the Petition for Certiorari filed by

the Government because of possible conflict of interpretation

between this cause and Schmerber v. United States, 86 Su-

preme Court 1826 (1960). In response to question number 1

presented in the Petition for Certiorari, the Respondent,

Davip Jessie GRAVES, would respectfully show the Court

--

3

that the questions of waiver and deliberate bypass of state

remedies as questioned by the Petitioner has always rested

within the sound discretion of the Federal Habeas Judge as

reflected in Fay v. Noia, 372 US 391, 83 Sup. Ct. 822, 9

L. Ed. 2nd 837 (1963). Thus it is apparent that both the

District Court and the Court of Appeals for the Fifth Cir-

cuit utilized their discretion in favor of the Respondent,

Davin Jessie Graves. In connection with. this point also see

Mize v. Crouse, 399 Fed. 2nd, 593 (Tenth Circuit 1968) and

Harris v. Beto, 280 Fed. Supp. 532 (S.D. Texas 1967)

Affirmed at 387 Fed. 2nd, 149 (Fifth Circuit 1967). In re-

gard to the second point the Respondent would respect-

fully show that the results of the blood test was vitiated

because the Police Chief informed the Respondent, Davip

JESSIE GRAVES, the blood would be used ‘to determine the

~ alcoholic content of his blood when the objective was to

test the blood to determine the type and not the alcoholic

content. In the words of the Fifth Circuit through Judge

Wisdom “The Court scrutinizes the efficacy of a consent

to a blood test secured by official strategem.” To the writer

this is a grave question of Constitutional stature and sl.ould

be clarified by the United States Supreme Court especially

in the view of numerous questions and interpretations

placed upon the rights of Defendants under the rulings of

the Court as reflected in Schmerber v. United States (cited

above). In the Schmerber case the blood test was taken

without the consent of the Defendant over his specific ob-

jections and over the specific objections of his Counsel,

but the United States Supreme Court ruled that in that

4

particular situation and where the officer desires to take

upon himself such action to prevent the disappearance of

evidence “The interest in human dignity and privacy which

the Fourth Amendment protects forbid any such intrusions

on the mere chance that desired evidence might be ob-

tained. In the absence of a clear indication that in fact

such evidence will be found, these fundamental human in-

terests require law officers to suffer the risk that such evi-

dence may disappear unless there is an immediate search.”

No such emergency existed in the instant case. An in-

dividual blood type remains constant and does not change

ar.d although Counsel disagrees with the result of Schmerber,

it is the law at the present time. In this case the Chief

of Police frankly testified that he took the blood to be

utilized as evidence in the rape case under investigation.

That Chief of Police Toler himself knowingly, willfully and

intentionally secired the blood test and sample by official

strategem and consequently the Respondent could not on

the other end of the question knowingly, voluntarily, in-

telligently and willingly waive his rights in regard to the

blood test. (No warnings of any kind administered to the

Defendant in custody prior to the taking of the blood

sample. ) | |

The Petition argues Frazier v. Cupp, 394 U.S. 731 (1969)

as being controlling on this point. However, we refer this

Honorable Court to the Opinion of the Fifth Circuit in

this cause and the footnote number 2 of the Opinion as

located in the Appendix “A” of Petitioner’s Petition for

Writ of Certiorari at pages 15 and 16 of said Appendix.

5

Therefore, Counsel approaches this response with mixed

emotions, being completely in agreement with the result

and the reasons therefor reached by both tie District Court

and the Court of Appeals for the Fifth Circuit in regard to

his client, Davi Jessm Graves, Counsel still feels that

the Writ of Certiorari filed herein by the State of Texas

should be granted and that the Supreme Court of the United

States settle the law for the Courts of the country on the

points involved in this cause.

Respectfully submitted,

WELDON HoLcoMB

Attorney by Appointment

for David Jessie Graves

November, 1970

CERTIFICATE OF SERVICE

I, Weldon Holcomb, a member of the Bar of the Supreme

Court of the United States, do hereby certify that a copy

of the foregoing Memorandum in Opposition on ‘behalf of

Davip Jessie Graves, Respondent in this cause No. 536

upon the Docket of the Supreme Court of the United States

of America for the October Term, 1970, has been served

on Counsel for Petitioner by depositing five copies of the

same in the United States mail, postage prepaid, addressed

to Mr. Robert C. Flowers, Assistant Attorney General of

Texas, at his office address of Box “R”, Capitol Station,

Austin, Texas 78711, this the _ day of , 19

Weldon Holcomb

Attorney for Respondent