# Brief for the Respondent in Opposition — Peele v. Jones

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondent in Opposition
- **Published:** January 1, 1974
- **Citation:** 417 U.S. 930

## Text

INDEX

SON BELOW Wb 1
1 SDICTION 4 — 2
3 2

ESTION PRESENTED |. --------—_=--—o
NS JONAL AND STATUTORY

*

Noris T0 INVOLVED
rtr or THE Cas

;CUMENT:
| THE CONSTITUTION DOES NOT REQUIRE A
| PRELIMINARY HEARING IN A STATE COURT .... 6

— $< $<$_$___———

2 TABLE OF AUTHORITIES

EBERTSON v. MILLAND, 345 US. 242,

Be, Ed. 983 (1958) —————————————

ARBARA v. ARKANSAS, 429 F. 2d 20

BBE Cir. 1970) a

JARBER v. US., 142 F. 2d 805, cert.

ed. 922 US. 741 (1098) nnn
ck v. WASHINGTON, 369 USS. 541,

BS. Ct. 955, 8 L. Ed. 2d 98 (1962ẽ722·
nus v. BOARD OF EDUCATION, 447 F.

fad 821 (7th Cir. 1071)
HRISCOE v. KUSPER, 435 F. 2d 1046

ith Cir, %% ——————
PLEMAN v. ALABAMA, 399 US. 1 (1970) ———
ELIA v. COURT OF COMMON PLEAS, 418

ed 205 (6th Cir. 1969) anne

DUNOVAN v. PEYTON, 292 F. Supp. 198

D.C. Va. 1968) ale
GRAVES v. EYMAN, 878 F. 2d $24 (9th

Cir. 1967) 9
HUDDLESTON v. DWYER, 322 US. 282,

88 L. Ed. 1246 (1944) ;

MILWAUKEE ELECTRIC RAILWAY v. WISCONSIN,
252 US. 100, 40 S. Ct. 302,

64 L. Ed. 476 (1920) -
MOREY v. DOWD, 354 US. 457,

1 I. Ed. 2d 1485 (1957) 9
MOSS v. HORNIG, 314 F. 2d 89

(nd Cir. 1963) 7,9
OVERSTREET v. U. S., 367 F. 2d 83 (5th Cir.

1966) 9
OYLER v. BOLES, 368 US. 448, 7 L. Ed. 2d

446 (1962) 9
PAINTEN v. COMMONWEALTH OF MASS.,

252 F. Supp. 851 (D.C. Mass. 1966) 7

PEELE v. JONES, Civil Action No. 4146
(E. D. N. C. 1973, mem. dec., No. 73-1527

4th Cir., December 14, 1973) 1
PHILLIPS v. NORTH CAROLINA, 488 F. 2d

659 (4th Cir. 1970) 6
POWELL v. POWER, 436 F. 2d 84 (2nd

Cir. 1970) 6,7

SAMPSELL v. CALIFORNIA, 191 F. 2d 721
(9th Cir. 1951) 1

SMITH v. VILLAGE OF LANSING, 241 F. 2d

856 (7th Cir. 1957) - ;
STATE v. FOSTER, 282 N.C. 189, 192 S. E.
2d 320 (1972) 5
STATE v. GASQUE, 271 N. C. 323, 329, 156

8. E. 2d 740 (1967) , cert. denied,
1

STATE v. PEELE, 281 N. C. 253, 188 S. E. 2d

326 (1972)

U.S. v. CHASE, 372 F. 2d 453 nc Cir.
1967)

co

U.S. ex rel JACKSON v. BRADY, 133 F. 2d

476 (4th Cir. 1943) , cert. denied,

319 US. 746, 87 L. Ed. 1702 -.......-..--.----------------

U.S. v. MACKEY, 474 F. 2d 55 (4th Cir.
1973) , cert. denied 87 L. Ed. 2d
401 (1973)

VANCE v. NORTH CAROLINA, 432 F. 2d 984

new ————

VIA v. PEYTON, 284 F. Supp. 961
OL. Va. 18)

WILLIAMS v. RHODES, 393 US. 23, 21 L. Ed.

2d 24 (1968)

WOODBERRY v. MekIN NON, 447 F. 2d 839

— — — eee

WRIGHT v. RHAY, 323 F. 2d 653
(9th Cir. 1963)

STATUTES INVOLVED

NCGS. 15-86

iii

a —— Oe ERT Oo a — 3,8
N. C. GS. 15-88 ......... 1
N. C. GS. 15-89 .
1 4

N. C. GS. 7A-272 (b)

MISCELLANEOUS
T „
Amendment XIV (U. S. Constitution g

iv

In The

Supreme Court of the United States

October Term, 1973

No. 73-1334

HAYWOOD L. PEELE,
Petitioner
v.
ROBERT E. JONES, Superintendent
Polk Youth Center,
Respondent

ON WRIT OF CERTIORARI
T0 THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA

BRIEF OF RESPONDENT,
ROBERT E. JONES, IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

OPINION BELOW

In a Memorandum Decision dated December 11, 1973, the
United States Court of Appeals for the Fourth Circuit re-
fused to issue a Certificate of Probable Cause to appeal from
the Order of the District Court denying habeas corpus relief.
PEELE v. JONES, Civil Action No. 4146 (E.D.N.C. 1973),
mem. dec., No. 73-1527 (4 Cir., December 14, 1973). A copy
of the Memorandum Decision of the United States Court of
Appeals for the Fourth Circuit (Pet. Br. pp. 17-18), as well
as the Order of the United States District Court for the East-
em District of North Carolina in PEELE v. JONES, Civil
No. 4146 — Raleigh (E.D.N.C. 1973) are appended to the
petition. (Pet. Br. pp. 19-21) .

JURISDICTION

The jurisdiction of this Court has been invoked pursuant
to 28 US.C. § 1254(1).

QUESTION PRESENTED

WHETHER IT IS A DENIAL OF THE EQUAL PRO.
TECTION OF THE LAWS IN VIOLATION OF THE
FOURTEENTH AMENDMENT FOR A STATE TO
DENY A PRELIMINARY HEARING TO A CRIM.
INAL DEFENDANT BEFORE INDICTMENT,
WHEN PRELIMINARY HEARINGS ARE FRE.
QUENTLY ACCORDED CRIMINAL DEFENDANTS
IN THAT JURISDICTION.

CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED

Constitution of the United States:
AMENDMENT XIV.

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 deny to any per-
son within its jurisdiction the equal protection of the
laws...

General Statutes of North Carolina:

N. C. GS. 15-85
Waiver of eramination—If any person arrested desires

3

to waive examination and give bail, it is the duty of the
officer making the arrest to take him before any magis-
trate of the county in which the offense is charged to
have been committed, or before any justice or judge of
the General Court of Justice.

N.C.GS. 15-86

Procedure, when justice has not final jurisdiction —In all
cases where a justice of the peace has not final jurisdiction
of the offense he shall desist from any final determination
of the action or complaint, and proceed as hereinafter
provided.

N.C.GS, 15-87

Duty of examining magistrate.— The magistrate before
whom any such person shall be brought shall proceed, as
soon as may be, to examine the complainant and the wit-
nesses, produced in support of the prosecution on oath, in
the presence of the prisoner, in regard to the offense charg-
ed, and in regard to any other matters connected with
such charge which such magistrate may deem pertinent.
The defendant shall be allowed a reasonable time before
the hearing begins in which to send for and advise with
counsel,

N.C.GS. 15-88

Testimony reduced to writing; right to counsel.— The
evidence given by the several witnesses examined shall
be reduced to writing by the magistrate, or under his direc-
tion, and shall be signed by the witnesses respectively. If
desired by the person arrested, his counsel shall be present
during the examination of the complainant and the wit-
nesses on the part of the prosecution, and during the
examination of the prisoner; and the prisoner or his counsel
shall be allowed to cross-examine the complainant and
the witnesses for the prosecution.

4

N.C.GS. 15-89

Prisoner examined; advised of rights—The magistrate
shall then proceed to examine the prisoner in relation to
the offense charged. Such examination shall not be on
oath; and before it is commenced, the prisoner shall be
informed by the magistrate of the charge made against him,
and that he is at liberty to refuse to answer any question
that may be put to him, and that his refusal to answer
shall not be used to his prejudice in any stage of the pro-

ceedings.
N. C. GS. 15-95

When prisoner held to answer charge. —Ii it shall appear
that an offense has been committed, and that there is
probable cause to believe the prisoner to be guilty there-
of, if the offense be bailable and the prisoner offers suf-
ficient bail, such bail shall be taken and the prisoner dis-
charged; if no bail be offered, or the offense be not bail-
able, the prisoner shal] be committed to prison.

N.C.GS. 7A-272 (b)

The district court has jurisdiction to conduct preliminary
examinations and to bind the accused over for trial upon
waiver of preliminary examination or upon a finding of
probable cause, making appropriate orders as to bail or
commitment.

STATEMENT OF THE CASE

Petitioner is presently committed under a life sentence to
the North Carolina Department of Correction pursuant to 3
verdict of guilty of first degree murder entered on January 20,
1972, by the Superior Court of Cumberland County, North
Carolina.

a

5

Peele was arrested on August 31, 1971, by officers of the
Fayetteville, North Carolina, Police Department, charged with
armed robbery and felony murder committed in the perpetra-
tion of the armed robbery. He was indicted by the Cumber-
land County Grand Jury during the September 20, 1971 Ses-
sion of Court for first degree murder and armed robbery and
was brought to trial in the Superior Court on the two bills of
indictment. Peele was convicted and sentenced to life im-
prisonment for first degree murder. He was convicted and
sentenced to an additional term of 25 to 30 years for armed
robbery. The conviction of armed robbery was set aside by
the Supreme Court of North Carolina when that Court de-
termined the armed robbery was embraced in and a part of
the first degree murder. The Court held that since Peele was
convicted of the greater offense of murder, he could not be
convicted of a lesser offense necessarily involved in and made
a part of the greater offense. STATE v. PEELE, 281 N.C.
953, 188 S.E. 2d 326 (1972) .

Subsequent to the affirming of the murder conviction by
the Supreme Court of North Carolina, STATE v. PEELE,
supra, Peele filed an application for post conviction relief in
the Cumberland County Superior Court, which application
was denied by that Court on September 19, 1972. He then
filed a petition for a writ of certiorari to the North Carolina
Court of Appeals to review the denial of the post conviction
relief, and this petition for writ of certiorari was denied on
November 17, 1972. The basis set forth for relief in Petitioner’s
applications for post-conviction hearing and appeal of the
denial thereof are the identical grounds set forth in the peti-
tion for writ of certiorari to this Honorable Court.

Peele then applied for a writ of habeas corpus to the Dis-
trict Court of the United States for the Eastern District of
North Carolina. The District Court denied Peele’s applica-
tion and he appealed to the United States Court of Appeals
for the Fourth Circuit. The judgment of the District Court

—

became non-appealable by virtue of the decision of the United
States Court of Appeals to deny a certificate of probable cause.

ARGUMENT

THE CONSTITUTION DOES NOT REQUIRE A
PRELIMINARY HEARING IN A STATE COURT.

It is no denial of the equal protection clause of the Four-
teenth Amendment for a state to indict and try a criminal
defendant without first providing him with a preliminary
hearing. This is especially true in North Carolina since a
preliminary hearing is not essential iv the finding of an in-
dictment. VANCE v. NORTH CAROLINA, 432 F. 2d 984
(4th Cir. 1970). North Carolina has no statute which requires
a preliminary hearing and the State Constitution does not
require one. STATE v. GASQUE, 271 N.C. 323, 329, 156
S E. 2d 740 (1967), cert. denied, 390 U.S. 1080 (1968) . Prob-
able cause is established by grand jury indictment. BARBER
v. U. S., 142 F. 2d 805, cert. denied, 322 U. S. 741 (1944).
When an accused is tried upon an indictment, he is not en-
titled to a preliminary hearing. BARBARA v. ARKANSAS,
429 F. 2d 20 (8th Cir. 1970). Nor is there a state or federal
requirement that a preliminary hearing be provided when the
defendant is subsequently tried on a valid indictment. COLE-
MAN v. ALABAMA, 399 U. S. 1 (1970); PHILLIPS v.
NORTH CAROLINA, 433 F. 2d 659 (4th Cir. 1970) ; STATE
v. GASQUE, supra. A preliminary hearing is not required if
there is an indictment, since both serve the same function,
US. v. CHASE, 372 F. 2d 453 (4th Cir. 1967); BARBER v.
US., supra; US. v. MACKEY, 474 F. 2d 55 (4th Cir. 1973),
cert. denied, 37 L. Ed. 2d 401 (1973) .

However, even assuming a right to a preliminary hearing
under the statute in such instances, which is denied, a dep-
rivation of a state right due to error does not violate the
Equal Protection Clause, BRISCOE v. KUSPER, 435 F. 2d
1046 (7th Cir. 1970); POWELL v. POWER, 436 F. 2d 84

E „ „

8
*
e
d
4

7

end Cir. 1970); DELIA v. COURT OF COMMON PLEAS,
418 F. 2d 205 (6th Cir. 1969). There must be a purposeful
or intentional deprivation executed by means of invidious
classification, MOSS v. HORNIG, 314 F. 2d 89 (@nd Cir.
1963); WOODBERRY v. McKINNON, 447 F. 2d 839 (5th
Cir. 1971); BOHUS v. BOARD OF EDUCATION, 447 F.
2d 821 (7th Cir. 1971), in order to violate the Equal Protec-
tion Clause. There is absolutely no showing in this regard.
Accordingly, no federal right arising under the Equal Protec-
tion Clause is presented for review. Furthermore, the
pourteenth Amendment does not, in guaranteeing equal pro-
tection of the laws, assure uniformity of judicial decision
land such a] contention is clearly unsound.” MILWAUKEE
ELECTRIC RAILWAY v. WISCONSIN, 252 U. S. 100, 40
8. Ct. 302, 64 L. Ed. 476 (1920); BECK v. WASHINGTON,
369 US. 541, 82 S. Ct. 955, 8 L. Ed. 2d 98 (1962). Essenti-
ally, such a claim would be only that the lew was misapplied
and this is not a basis for habeas corpus relief, BECK v.
WASHINGTON, supra. Were the law otherwise, every un-
successful litigant in state court proceedings would be able
to demand that federal courts be the arbiter of the correci-
ness of state court decisions and judgments concerning state
law, SMITH v. VILLAGE OF LANSING, 241 F. 2d 856
(7th Cir. 1957); SAMPSELL v. CALIFORNIA, 191 F. 2d
721 (9th Cir. 1951); PAINTEN v. COMMONWEALTH OF
MASS., 252 F. Supp. 851 (D.C. Mass. 1966) ; and the writ of
habeas corpus would thereupon serve as an additional appeal
on state matters, which it does not.

The North Carolina Supreme Court has held many times
that a preliminary hearing is not a necessary step in the pros-
ecution of a person accused of crime and an accused person
is not entitled to a preliminary hearing as a matter of right
STATE v. FOSTER, 282 N.C. 189, 192 S.E. 2d $20 (1972).
In that case, Chief Justice Bobbitt, speaking for a unanimous
Court at page 196, had the following to say:

“A preliminary hearing may be held unless waived by

8

defendant. G. S. 15-85 and G. S. 15-87. But none of
these statutes prescribe mandatory procedures affecting
the validity of a trial. A preliminary hearing is not an
essential prerequisite to the finding of an indictment in
this jurisdiction. STATE v. HARGETT, 255 NC. 412.
413, 121 S.E. 2d 589, 590 (1961). We have no statute
requiring a preliminary hearing nor does the State Con-
stitution require it. It was proper to try the petitioner
upon a bill of indictment without a preliminary hearing.
STATE v. HACKNEY, 240 N.C. 230, 237, 81 S. E. 2d
778, 783 (1954). Accord, GASQUE v. STATE, 271 N.C.
$23, 329-330, 156 S.E. 2d 740, 744 (1967); STATE vy.
OVERMAN, 269 N.C. 453, 467, 153 S.E. 2d 44, 56
(1967); VANCE v. NORTH CAROLINA, 482 F. 2d 984
(4th Cir. 1970); CARROLL v. TURNER, 262 F. Supp.
486 (E.D.N.C. 1966) .

“If the Grand Jury finds an indictment, there is no need
to conduct a preliminary examination. 21 Am. Jur. 2d
Criminal Law, § 442 (1965) . Accord, JABEN v. UNITED
STATES, 381 US. 214, 14 L. Ed. 2d 345, 85 S. Ct. 1365
(1965) .”

Interpretations of state laws by the highest court of a state
should be accepted by a federal court unless they conflict with
the United States Constitution. WRIGHT v. RHAY, 323 F.
2d 653 (9th Cir. 1963), and a construction of a state statute
by the highest court of a state binds a federal court. HUD-
DLESTON v. DWYER, 322 U.S. 282, 88 L. Ed. 1246 (1944);
ALBERTSON v. MILLAND, 345 US. 242, 97 L. Ed. 983
(1953). Therefore, the interpretation of the North Carolina
preliminary hearing statutes is binding on federal courts. These
statutes have been interpreted by the North Carolina Supreme
Court in STATE v. FOSTER, supra.

The Petitioner has not shown any prejudice resulting from
his failure to have a preliminary hearing and he bears the

burden of proving such prejudice. US. ex rel JACKSON v.
BRADY, 133 F. 2d 476 (4th Cir. 1943) , cert. denied, 319 US.
746, 87 L. Ed. 1702; VIA v. PEYTON, 284 F. Supp. 961 (D.C.
Va. 1968). In this case, Petitioner has suffered no prejudice
because he received a transcript of the trial of the state’s evi-
dence in his confederate’s trial. The issues and the witnesses
in the two trials were almost identical because each of the
defendants was charged with the commission of the same
criminal acts. The evidence showed that they were together
when the robbery and murder occurred.

The fact that others may have received preliminary hear-
ings, while Peele did not, does not violate the equal protec-
tion of the laws. GRAVES v. EYMAN, 373 F. 2d 324 (9th
Cir. 1967); DUNOVAN v. PEYTON, 292 F. Supp. 193 (D.C.
Va. 1968) . Minor differences in the appliction of rules of prac-
tice do not raise an equal protection question, WILLIAMS v.
RHODES, 393 US. 23, 21 L. Ed. 2d 24 (1968) , only discrim-
inations which are “invidious” do. MOREY v. DOWD, 354
US. 457, 1 L. Ed. 2d 1485 (1957). Essentially, the decision
to bypass the preliminary hearing by obtaining an indictment
prior to the time of the preliminary hearing is a matter of
proscutorial discretion and such action is not reviewable in
the context of an allegation that the equal protection of the
laws were not afforded, OYLER v. BOLES, 368 US. 448, 7 L.
Ed. 2d 446 (1962) ; MOSS v. HORNIG, 314 F. 2d 89 (2nd Cir.
1963); OVERSTREET v. US., 367 F. 2d 83 (5th Cir. 1966) .
Accordingly, Peele’s contention, insofar as it is based on the
equal protection clauses of the Constitution of the United
States and North Carolina, is without merit.

CONCLUSION

From the foregoing arguments and authorities, it conclu-
sively appears that Petitioner has brought no matter to this
Court’s attention which would justify its further considera-
tion of his case. He has wholly failed to show either a legal

*

wrong amounting to an infringement of his constitutional
rights, or any prejudicial damage to him arising out of same.
Accordingly, his application for writ of habeas corpus was
properly denied by the district court; his appeal was properly
dismissed by the Court of Appeals; and certiorari should not
issue from this Honorable Court to further review Petitioner's
case.

10

This 13 day of May, 1974.

ROBERT MORGAN
Attorney General of
North Carolina

JOHN R. B. MATTHIS
Assistant Attorney General

RICHARD N. LEAGUE
Assistant Attorney General

JACOB L.SAFRON
Assistant Attorney General

COUNSEL FOR RESPONDENT
Post Office Box 629
Raleigh, North Carolina 27602

Telephone: (919) 829-7387
CERTIFICATE OF SERVICE

I hereby certify that I have served the foregoing Brief on
counsel for the Petitioner, Norman B. Smith, of the firm of
Smith, Carrington, Patterson, Follin & Curtis, by placing
three (3) copies in the United States Mail at Raleigh, North
Carolina, postage prepaid, to 704 Southeastern Building,
Greensboro, North Carolina - 27401, on this 13 day of May,
1974.

John R. B. Matthis
Assistant Attorney General

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1362%3A2. Public record. Not legal advice.