Opposition Brief — Clingon v. Mississippi

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MICHAEL RUDAK, JR., ¢

In the Supreme Court of the United States

OCTOBER TERM, 1974

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4 DAVID WILLIAM CLINGON,

4 Petitioner,

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STATE OF MISSISSIPPI,

Respondent.

PETITION FOR A Writ OF CERTIORARI TO THE SUPREME COURT

OF MISSISSIPPI

a BRIEF IN OPPOSITION

A. F. Summer, Attorney General

By: Ben H. WALLEY

Assistant Attorney General

P. O. Box 220

: Jackson, Mississippi 39205

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Opinion Below ........................ Ecce Soe eS ED OW aC SEHD

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Appendix A-—Opinion, Supreme Court of eniniiia: is

Appendix B—(R, Vol. I, pp. 17-23) 2.2... cecceceeeseeceeceeoee

Appendix C—(R, Vol. III, pp. 399-400) Motion for New

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Appendix D—Miss. Sup. Ct. Rule _ patel ca pee eaccbun intro!

Appendix E—(Brief of Appellant) Asslapainek of Er-

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Appendix F—Miss. Sup. Ct. Rule 7 200.000.000.000... pokes

Appendix G—Miss. Sup. Ct. Rule 10

Table of Authorities

CASEs CITED

Browning v. Shackelford, 196 So.2d 365 (Miss. 1967} ....

Cardinale v. Louisiana, 394 U.S. 437, 22 L.Ed.2d 398, 89

Bien Sie (OOO. clout cae

Clingon v. State of Miss., 293 So.2d 823 (Miss. 1974) ....

Colson v. Sims, 220 So.2d 345, 346 (Miss. | eae

Street v. New York, 394 U.S. 576, 22 L.Ed.2d 572, 89

er OE CI voekeae

Turner v. State of Louisiana, 379 U.S. 466, 13 L.Ed.2d

424, 85 S.Ct. 546 (1964) 0.

Yelverton v. State, 191 So.2d 393 (Miss. 1966)

II 4

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ConSTITUTIONAL Provrsions AND

STATUTES

Constitution of the United States, Amendment XIV,

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In the Supreme Court of the United States

OCTOBER TERM, 1974

DAVID WILLIAM CLINGON,

Petitioner,

VS.

STATE OF MISSISSIPPI,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE SUPREME COURT

OF MISSISSIPPI

BRIEF IN OPPOSITION

OPINION BELOW

The opinion of the Supreme Court of Mississippi is re-

ported as David William Clingon v. State of Mississippi,

293 So.2d 823 (Miss. 1974). Rehearing denied May 20,

1974. A copy of the opinion is attached hereto as Ap-

pendix A.

JURISDICTION

Petitioner seeks to invoke the jurisdiction of this Court

by way of a Petition for Writ of Certiorari through the au-

thority of 28 U.S.C., Section 1257(3). Jurisdiction is im-

properly invoked under said authority as is hereinafter set

forth in Respondent’s argument.

QUESTIONS PRESENTED

As hereinabove set forth, the constitutional issue pre-

sented is not properly before this Court.

CONSTITUTIONAL PROVISIONS INVOLVED

Petitioner seeks to invoke the provisions of the Con-

stitution of the United States, Amendment XIV, Section 1.

However, as hereinafter set forth, the question raised is not

properly before this Court.

*

STATEMENT OF THE CASE

The Petitioner was indicted for murder and was con-

victed in the Circuit Court of Rankin County, Mississippi,

of manslaughter. The Supreme Court of the State of Mis-

sissippi affirmed the conclusions and findings of the Lower

Court.

During the process of impanelling the Jury, and at a

point in time when the State was required to tender to

°

3

defendant a full panel of jurors, the District Attorney and

the County Attorney withdrew from the courtroom to make

final decisions prior to tender of the panel and at the same

time the sheriff departed the courtroom. The departure of

the three officials was in plain and unobstructed view of

the prospective jurors. Counsel for defendant, Petitioner

herein, promptly entered a motion to quash the special

venire because the District Attorney, County Attorney and

the sheriff departed the courtroom simultaneously and the

sheriff was to be and he did testify as a material witness on

the trial of the case. Such conduct was alleged to be

highly prejudicial to Petitioner.

An evidentiary hearing was held on the motion to

quash without the presence of the jury, and the trial judge

found that error, if any committed, was harmless error

and the motion was overruled. The evidence presented

and findings and rulings of the trial judge on this motion

appear in the Appendix as B. During the course of the

trial, the sheriff was called and he did testify as to the guilt

of Petitioner, without any further objections from Counsel

for Petitioner.

At the conclusion of the trial and after sentence had

been imposed, a Mction for New Trial was filed but Peti-

tioner did not complain further of the actions of the Trial

Judge in overruling his Motion to Quash the Special Venire

(See Appendix B), nor of any error in the denial of due

process in violation of the Constitution of the United States,

Amendment XIV, Section 1. A true copy of the Motion

for New Trial appears in the Appendix as C.

Feeling aggrieved with the judgment of the Lower

Court, Petitioner perfected an appeal to the Supreme Court

of Mississippi, and in compliance with Mississippi Supreme

Court Rule 6 (Appendix D), adopted December 20, 1967.

4

prepared and filed Assignments of Error (a true copy of

which appears in Appendix as E); prepared and filed Brief

for Appellant as required by Mississippi Supreme Court

Rule 7 (Appendix F); and, in due time argued his cause

according to Mississippi Supreme Court Rule 10 (Appendix

G). There was no ©~~-. assigned, nor was there any argu-

ment made to invite the. ‘tention of the Supreme Court of

Mississippi to any alleged denial of due process of law, or

to ask the Supreme Court of Mississippi to review the ac-

tions of the Lower Court in denying the Motion to Quash

the Special Venire (Appendix B).

After the Motion to Quash the Special Venire was

made, the evidentiary hearing was held thereon, and the

findings and rulings of the Lower Court were entered (Ap-

pendix B), the Petitioner made no further complaints or

objections in the trial court, cr on appeal to the Mississippi

Supreme Court, concerning the federal constitutional issue

here relied upon, and the Mississippi Supreme Court’s

opinion did not rely upon federal or state constitutional

_ grounds in affirming the conviction (Appendix A).

ARGUMENT

It is well established that this Court will not decide

federal constitutional issues raised here for the first time.

Cardinale v. Louisiana, 394 U.S. 437, 22 L.Ed.2d 398, 89

S.Ct. 1162 (1969).

It is well established that it will be assumed that where

the highest state court has failed to pass upon a federal

question, the omission was due to want of proper presenta-

tion in the state courts, and the burden of showing other-

wise is on the aggrieved party. Street v. New York, 394

U.S. 576, 22 L.Ed.2d 572, 89 S.Ct. 1354 (1969).

It is the position of the State of Mississippi that Peti-

tioner’s sole federal question presented by his petition was

raised in the trial court by his Motion to Quash the Special

Venire and that facts were presented at the evidentiary

hearing to show that his motion was not well taken and

should be and it was overruled (Appendix B). The record

reflects, without dispute, that the question raised by the

Motion to Quash and set out in the petition herein, was not

further raised, presented or argued in the trial court or the

Mississippi Gupreme Court (Appendix C and E). Thus,

une sole federal question herein raised was not preserved

and presented to the. Mississippi Supreme Court, and the

Mississippi Supreme Court did not, and could not, consider

and pass upon the federal question because it had not been

preserved and presented to the Court. olson v. Sims, 220

So.2d 345, 346 (Miss. 1969).

In Browning v. Shackelford, 196 So.2d 365, 373 (Miss.

1967), the Court stated:

Rule 6 of this Court deals particularly with “plain

errors” and does not require or permit us to adopt a

neo-advisory position and suggest to litigants other

potential offenses .or defenses. It is the immutable

obligation of a court to sit, and to sit only, as an ob-

jective and indifferent arbiter of the rights of the

litigants. This Court has been meticulous in striv-

ing to fulfill this austere duty.

In the absence of a showing to the contrary, it must

be assumed that the failure of the Mississippi Supreme

Court to pass upon the federal question here presented ~

was because it was not preserved and rresented to the

State Supreme Court. Since it was not preserved and

presented to the Mississippi Supreme Court, this Court

should not consider the federal question now before it.

no

Further, the State of Mississippi does not believe the

facts ot record (Appendix B) support that material part

of the question presented, i.e., “where the sheriff was with

the District Attorney and assisting the District Attorney in

passing upon the jurors called, in plain view of the Jury,”

(emphasis added}, which factual situation is necessary to

bring the question into the rule of law relied upon by Peti-

tioner and within the provisions of Yelverton v. State, 191

So.2d 393 (Miss. 1966). Too, the State of Mississippi would

respectfully submit that the factual situation existing as

reflected by Appendix B removes this case completely

from the rule, and the valid reasons for the rule, as an-

nounced in Wayne Turner v. The State of Louisiana, 379

U.S. 466, 13 L.Ed.2d 424, 85 S.Ct. 546 (1964). In the instant

case, the factual situation reflects that the sheriff, the

District Attorney and the County Attorney, all officers of

the court, departed the courtroom at or about the same

time; that after they had cleared the courtroom the sheriff

went his separate ways to arrange for bailiffs to attend the

jury in response to directions from:the court. Since the

sheriff was to be, and did’ appear as, a witness, it was

necessary and proper that he obtain and assign others to

the duties of bailiff. In the case of Turner, the contrary

was true. Simmons and Rispone were not only key wit-

nesses, they were deputy sheriffs and were assigned the

additional duties of bailiffs during the entire period of the

three day trial. They were responsible for the needs and

comforts of the entire jury. In the instant case, the sheriff

was not in attendance to the needs of the jury, that being

assigned to bailiffs who were not witnesses. Thus, a totally

different relationship was created and existed.

~1

CONCLUSION

Therefore, for the reasons set out above, the Petition

for a Writ of Certiorari should be denied.

Respecifully submitted,

A. F. SUMMER, Attorney General

By: Ben H. WALLEY

Assistant Attorney General

Of Counse!

CERTIFICATE

_I, Ben H. Walley, Assistant Attorney General for the

State of Mississippi, do hereby certify that I have this day

mailed, postage prepaid, a copy of the foregoing Brief in

Opposition to Edward L. Cates, Attorney at Law, P. O. Box

2005, Jackson, Mississippi 39205.

This the 18th day of November, 1974.

Ben. H. WALLEY

Assistant Attorney General

APPENDIX

APPENDIX “A”’

IN THE SUPREME COURT OF MISSISSIPPI

NO. 47,902

DAVID WILLIAM CLINGON

v.

STATE OF MISSISSIPPI

GILLESPIE, CHIEF JUSTICE:

David William Clingon was indicted in the Circuit

Court of Rankin County for the murder of Fred Leon

Browning and convicted of manslaughter. He prosecutes

this appeal, and the principal question raised is whether

he was entitled to a peremptory instruction.

Defendant argues that he was entitled to a peremp-

tory instruction under the rule announced in Weathersby

v. State, 165 Miss. 207, 147 So. 481 (1933), which is as

follows:

It has been for some time the established rule in

this state that where the defendant or the defendant’s

witnesses are the only eyewitnesses to the homicide,

their version, if reasonable, must be accepted as true,

unless substantially contradicted in material particu-

lars by a credible witness or witnesses for the state,

or by the physical facts or by the.facts of common

k: »wledge. 165 Miss. at 209, 147 So. at 482.

The Ueceased lived with his family in a trailer home

in Rankin County. On the afternoon of the homicide,

10

defendant stopped by the Browning home, and he and

Browning left to purchase some alcohol. Later they both

returned with two bottles of whiskey. An argument de-

veloped between defendant and Browning, and Mrs,

Browning and her daughter left. Thereafter defendant

drove to the home of J. T. Varner and requested Varner

to take him to the sheriff's office so that one of the deputies

could take him to a doctor. Clingon gave Mrs. Varner

a 38-caliber pistol which contained three rounds of live

ammunition and three empty hulls. Clingon stated that

he had been shot, although his wounds consisted only

of deep scratches on his stomach. There were holes in

each side of his zipper jacket and one hole in his shirt.

Defendant then went to the jail and thence to the hospital

where a nurse bandaged his wounds.

During the investigation that followed, the body of

Browning was found in his bedroom which is at the end

of a hall. Immediately in front of the bedroom entrance

are a bathroom on the left side of the hall and a back

door to the trailer on the right side. The hail is two

feet wide. Browning was lying face down with his head

toward the rear of the trailer. Near the doorway was

a shotgun pointed toward the hallway with a spent shell

in the barrel. A live shotgun shell was on the floor nearby.

On the side of the hal] opposite and down from the bath-

room door was a hole in the wall made by the pellets

from a shotgun, and in this hole were fragments of cloth,

presumably part of defendant’s zipper jacket. Two spent

38-caliber bullets were found in the bedroom, and another

was lodged in the bedroom wall.

Browning had been shot three times, and there were

powder burns around the two wounds on his chest. The

first bullet entered in the buttock below the hip line,

traversed through the soft tissue of the buttock, and exited

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to the left of the mid line still in soft tissue. The angle

was toward the center of the body and down. The second

wound, which was probably the fatal wound, went through

the heart and the lung before it exited. The angle was

almost a straight shot perpendicular to the vertical position

of the body. The maximum time that a person could

live after sustaining that wound would be fifteen to thirty

seconds. The third missile entered the right side of the

chest and exited below the rib cage on the left side. This

wound was at a downward angle and would a'.v have

been fatal if he had not received almost immediiie atten-

tion. Browning was essentially dead when this third

wound passed through his body.

' The pathologist determined that the shot in the hip

was the first by reason of the fact that the blood had

been pumped out from the missile track. indicating the

heart was pumping blood at the time the wound was

inflicted. The pathologist’s opinion as to the seguence

of the three shots was based on the amount of bleeding

related to the track of the missiles and the fact that the

heart did not pump after it was penetrated by a bullet.

The shot entering the right side of his chest caused a.

minimal amount of hemorrhage along the missile track,

indicating that the heart was not pumping when that shot

was fired.

DEFENDANT'S VERSION

Defendant testified that before going to the Browning

residence he went by a pawn shop in Jackson, picked

up his pistol and then went to look at a lot located near

Browning’s trailer that he was interested in buying. As

he passed Browning’s trailer, Browning stopped him and

asked where his drinking whiskey was, and defendant

replied that he did not have any whiskey. Browning

12

asked defendant to take him to Jackson so that he could

buy some. Since neither Browning nor his wife had

enough money to buy the alcohol, defendant loaned Brown-

ing ten dollars. Browning and defendant bought whiskey

in Jackson and then returned to the Browning trailer.

Browning insisted that defendant go in, and defendant

agreed, saying he could not stay very long. The two

men went inside and sat down at the dining room table

as Mrs. Browning gave them glasses and Coca-Colas which

they used to pour themselves each a drink.

While Mrs. Browning waiched television, Mr. Brown

ing attempted to engage defendant in an argument by

accusing him of being responsible for his being fired. De-

fendant denied the accusation and told Browning that he

would have to leave. Browning then quit arguing and

Told derendant to sit Gown, but he soon resumed the argu-

ment. Defendant asked Mrs. Browning whether she had

explained to Mr. Browning that defendant had had nothing

to do with his being fired, and she replied that she had

but her husband was hardheaded. Browning then told

his wife to shut up and stay out of it, and Mrs. Browning

left.

Defendant then asked Mr. Browning if he could use

his bathroom. Browning pointed the way and then fol-

lowed him. When defendant came out of the bathroom,

Browning, standing to defendant’s left in the bedroom.

said, “Clingon, I am going to kill you.” Defendant replied,

“No, no, Browning.” Browning fired a shotgun, and the

blast knocked defendant down against the outside wall

which was across from the bathroom. As Clingon started

to get up, Browning was still pointing the shotgun at

him, and Clingon pulled his gun out of his coat and started

firing, because he thought his life was in danger. He

fired rapidly three times while the shotgun held by Brown-

13

ing was about three feet from his body. Browning was

in a standing position when defendant fired at him, and

he thought Browning reeled a little after he shot him,

although he did not know whether he hit him. The holes

in defendant’s shirt and jacket where caused by the shotgun

blast. He did not shoot Browning when Browning was

down.

Defendant denied he had threatened to kill Browning

prior to the shooting. He denied that Browning’s daughter

was in the trailer while he and Browning were arguing.

He denied that he was drunk and that Browning had

told him to leave. . Defendant also denied that he asked

the deputy sheriff at the jail, “Are you bastards going

to take me to the hospital?” He denied having told

the nurse to get up on the stretcher with him.

THE CONTRADICTIONS

The Weathersby rule is unavailable if defendant's ver-

sion is unreasonable, or substantially contradicted in mate-

rial particulars by a credible witness or witnesses for the

state, or by the physical facts, or facts of common know!-

edge. The defendant's version is cortradicted in the fol-

lowing respects:

1. - The wife of deceased testified that when the defen-

dant asked her husband to go with him to get some

whiskey, Browning refused, but defendant insjsted: until

he agreed. It was defendant, not Browning, who started

the argument. Defendant became intoxicated, and Brown-

ing asked him to leave. Defendant insisted that Browning

admit that he remembered something they were arguing

about, and Browning insisted that he did not remember.

Whereupon defendant told Browning, * ‘Don't say that you

don’t remember, or I might kill you.’

a os

14

2. The daughter of the deceased stated that the defen-

dant persisted in needling Browning and that when defen-

dant got up from the table where he and Browning had

been drinking, he staggered, had trouble speaking, and

in her opinion was drunk.

3. J. B. Torrence, Sheriff of Rankin County, testified

that when he saw the defendant at his office the defen-

dant was drunk. Two days after the shooting, defendant

told Torrence that he hated that he had to kill the man

but that Browning was standing at the dining room table

reaching for his gun when he shot him.

4. Jack Smith, an investigator for the Highway Pa-

trol, stated that when defendant came to the Rankin

County Jail he said, “Are you bastards going to carry

me to a doctor or hospital?” The defendant was intoxi-

cated at that time. Two days after the incident, defendant

told Smith that he hated to shoot the man after he was

down but that he was attempting to load the shotgun

when defendant shot him. Defendant told Smith that

he and Browning were sitting at the table in the dining

room, which is at the opposite end of the trailer from

the bedroom. When defendant got up to go to the bath-

room and when he emerged from the bathroom, Browning

was still at the dining room table and fired the shotgun

at him.

5. A.°B. Martin, a deputy sheriff of Rankin County,

testified that when defendant came to the jail after the

shooting, he was drunk.

6. Ken Dickerson, a deputy sheriff of Rankin County,

testified that when he saw defendant after the shooting,

the defendant was drunk. After defendant went to the

hospital, defendant told him that he hated to shoot the

man while he was down but that Browning was trying

to reload the gun.

15

7. Kenneth Warren, deputy sheriff of Rankin County,

testified that while at the hospital following the shooting,

defendant said, “I hated to shoot him while he was down,

but he kept trying to get up and reload the gun.”

8. Mrs. Margaret Ainsworth, a registered nurse at

the Rankin General Hospital, who was on duty when

Clingon was brought to the emergency room, testiiied that

defendant was in an intoxicated condition and asked her

if she would like to climb upon the stretcher with him.

She stated that defendant said that he hated to shoot

the man when he was down, but that he had gone for

his gun.

The foregoing contradictions involved material partic-

ulars and were made by credible witnesses for the State.

Defendant went to the horae of deceased armed with

a loaded pistol. The jury was justified in finding that

he became drunk and precipitated the argument with the

deceased; that he gave three different versions of the shoot-

ing: (1) that Browning was in the dining room when

Browning shot at him with the shotgun (obviously not

true from the physical facts), (2) that he shot Browning

when Browning was down, and (3) that he shot Browning

when Browning was standing in the bedroom. Consider-

ing all of the evidence, including the contradictions noted

herein, we hold that the Weathersby rule is not available

to the defendant in this case and that the question of

his guilt was for the jury. Cowart v. State, 270 So2d

350 (Miss. 1972).

Defendant assigns as error the giving on behalf of

the state of instruction No. 6, which is similar to the

one given in’Patterson v. State, 289 So.2d 685 (Miss. 1974

This instruction is concerned with malice afcrethought.

which is an element of murder but not of manslaughter.

Defendant was not convicted of murder, and, therefore.

16

the giving of the instruction is not reversible error insofar

as the question of malice aforethought is concerned. The

instruction in question does not have the vices that resulted

in the reversal of Nicholson v. State, 243 So.2d 552 (Miss.

1971), because in Nicholson the state’s instruction was

focused on the plea of self-defense. The instruction in

the case at bar uses the phrase “and not in necessary

self-defense, real or apparent,” not in a manner to advise

the jury concerning that defense, but merely to avoid

cutting off that defense. The defendant received ample

instructions setting out his claim to self-defense, perhaps

considerably more liberal than he was entitled to under

the law. Therefore, we find no reversible error in the

giving of state’s instruction No. 6.

The next question raised is the contention that the

verdict is contrary to the law and the evidence. The

thrust of defendant’s argument is that he z~ted in neces-

sary self-defense, and that there is no evidence to the

contrary. This is discussed in the first question raised,

and we find no merit in this assignment of error.

Finally, defendant savs that the trial court erred in

allowing the state to introduce pictures depicting the body

of the deceased, because such pictures served no other

purpose than to prejudice and inflame the jury. The pic-

tures show the location of the wounds in a manner that

would be dificult to describe orally. We are of the opinion

that these photographs served a useful evidentiary purpose

in this case. Moreover, the introduction of such evidence

is within the sound discretion of the trial judge. Ford

v. State, 227 So.2d 454 (Miss. 1969).

AFFIRMED.

PATTERSON, INZER, SUGG AND BROOM, JJ.,

CONCUR.

sworn

17

APPENDIX “B”

(R, Vol. I, pp. 17-23) =

BY MR. BARNETT: Comes the defendant and moves

the Court to suppress any evidence that Mrs. Browning,

widow of the deceased, went to the home of Mr. Clingon

before the shooting took place and that <his evidence has

no relevancy whatsoever with reference to the case of

murder. In the other trial, testimony was admitted that

Mrs. Browning went to the horne of Mr. Clingon and

advised Mrs. Clingon that Clingon and Browning were

drinking and that she was afraid trouble would result

from an argument going on between Clingon and Brown- 3

evidence to the effect that Mrs. Browning went to the ,

home and made such a report; that it would be highly

prejudicial to the defendant.

BY THECOURT: I will rule on that later.

The Judge sent for the Sheriff, and upon his arrival

in chambers, all counsel and the defendant still present,

the following proceedings were had and done:

BY THE COURT:

Q. Mr. Sheriff, a while ago when you left the court- :

room prior to the selection of the jury, tell me how you =

came out of the courtroom.

l A. I don’t know. I believe that Jim came out first,

maybe me second, Bill third, I might have been last, I

am not sure.

Q. Did you come out at the same time, Mr. Sheriff?

A. I think so, both ct the same time.

Q. Did the District Attorney motion you to come

out or did you just get up and walk out? b

A. Nosir, I just got up and walked out.

18

BY THE COURT:

Q. Mr. Cunningham, you want to ask any questions?

BY MR. CUNNINGHAM:

Q. Sheriff, did you confer with Mr. Herring when

you came out?

A. Yessir, we talked.

Q. I know you had a piece of paper, as a matter

of fact, did you confer with him about any of the jurors?

A. I was looking over testimony I had given last

time, that’s what I was doing.

Q. How close together were you three men when

you left the courtroom and went in the ante-room?

A. I came outside, Jim and them went down stairs.

J eme 42 2 here t+ se the tolophone+s_pet ip come

bailiffs.

Q. Did you have any conversation with Mr. Herring

about members of the jury?

A. I went on down stairs after I got off the telephone,

they were back there discussing jurors. About the time

I got in there they left, Bill and District Attorney, came

back up stairs. |

Q. When you went back in the jury room, isn’t it

a fact you and Mr. Herring and the county Attorney came

back in together?

A. No sir, I believe I came back in first. I was

back up stairs before I knew they had come back up.

Q. You did discuss the jury list?

A. Wedid discuss the jury on—

Q. You did leave the courtroom pretty close to-

gether?

A. We left the courtroom pretty close together.

Q. As a matter of fact you three men went into

the ante-room before the door was ever closed, did you

not?

oe

19

A. I came out of the courtroom and came in hese

to use the telephone. Jim and them went down stairs.

When I got down stairs they were talking. About the

time I got there they were called back upstairs. Somebody

said the Judge sent for them.

Q. Where were you when you discussed the jury

list? A. We discussed the jury list some time after

we got the jury list.

Q. Imean this morning?

A. When the twelve jurors were called and the

twelve jurors were in the box.

Q. And you and Mr. Herring and the County Attor-

ney left the courtroom at the end of Mr. Herring’s voir

dire?

A. They were discussing the jury down there when

I got in the room.

Q. That is what I had reference to.

A. They were called out and just almost immediately

after I got down there they left and came back upstairs.

BY MR. CUNNINGHAM: That is what we propose

to show, that it all occurred in the presence of the jury

and the prospective jurors. We know you have the right

of the District Attorney to confer with the sheriff but

the actions of the three gentlemen was noticeable in open

court.

BY MR. HERRING:

Q. Sheriff, do you know where the County Attorney

and I made our selection? Was it in the ante-room in

here?

A. I suppose you made it down stairs. I don’t know,

may have been in the ente-room.

BY MR. CUNNINGHAM:

Q. Let me ask you one more question. Did you

give your opinion to the District Attorney or County Attor-

ney concerning any jurors that had been drawn?

20

A. I didn’t today. We did not talk before they left

the courtroom to go down stairs.

Q. When you left did you intend to cooperate with

the District Attorney?

A. I feel if he needed my cooperation, I certainly

did.

. BY THE COURT: Got any further questions, Mr.

Herring:

BY MR. HERRING: Nosir, nothing further.

BY THE COURT: Anything further Mr. Cunning-

ham?

BY MR. CUNNINGHAM: I would like to call Dan

Martin, Your Honor.

BY THE COURT: Since Mr. Martin is an officer

of the Court, oath will be waived.

Oath being waived, Mr. Martin testified as follows:

BY MR. CUNNINGHAM:

Q. Mr. Martin, were you present in court this morn-

ing when, during the selection of the jury when Mr. Her-

ring conducted the voir dire examination?

A. Yes sir.

Q. Were you present when the State had ended the

voir dire examination?

A. Iwas.

Q. I will ask you if you noticed Mr. Herring today

in the courtroom?

' A. I did.

Q. Tell the Court, if you will, what you noticed at

the time Mr. Herring left.

A. At the time Mr. Herring left the only time I

noticed, the sheriff was sitting there. After Mr. Herring

and Mr. Bridges left the room, Mr. Torrence was also

gone. I do not know in what order, but I do know they

left approximately the same small period of time which

would indicate they left at about the same time.

21

Q. Did you notice the District Attorney motion to

the sheriff to come into the ante-room?

A. I noticed the District Attorney look back into

the courtroom.

Q. Did this occur in the presence of the open court

in the presence of the jurors in the box as well as in

the rest of the court?

A. Yes sir.

Q. Did they close the door to the ante-room?

A. Not until all three gentlemen were absent from

the courtroom.

Q. I will ask you if you noticed when Sheriff Tor-

rence returned to the courtroom?

A. At the time I did not notice, no.

BY MR. CUNNINGHAM: That’s all.

BY THE COURT: Mr. Herring, you have any aues-

tions?

BY MR. HERRING: Nosir.

BY THE COURT: Anybody else you want to call

Mr. Cunningham?

BY MR. CUNNINGHAM: Nosir.

BY MR. HERRING: Your Honor, I will call Mr.

Bridges.

Mr. Bridges was called and being an officer of the

Court, oath was waived and he testified as follows:

BY MR. HERRING:

Q. You are Billy Bridges, County Attorney?

A. lam.

Q. Mr. Bridges I believe you were in the courtroom

at the time the voir dire took place, were you not?

A. That’s right, I was.

Q. Do you have any recollection as to who left the

courtroom first after the voir dire took place?

A. I left the courtroom first.

Sper ae 4

SS ee een

a te -

ee Mile

22

Q. Do you know who left second?

A. I think Mr. Torrence left second. { am not sure

about that, but he was behind me.

Q. All right, where did you proceed to?

A. Went from there down to Philip Warren’s office,

the Circuit Clerk’s office I was alone when I went there.

BY MR. HERRING: No further questions.

BY MR. CUNNINGHAM:

Q. Mr. Bridges, Mr. Herring left the courtroom too,

did he not?

A. He did, he was behind me.

Q. Isn’t it true you three men were one behind the

other when you left?

A. Mr. Herring was behind me, I didn’t look to see

who was behind him. I went in Philip Warren’s office

first.

Q. Did you see the sheriff down there?

A. The sheriff was talking with a man at the head

of the stairs and talked with him at some time before

he came in the clerks office.

Q. Did you three gentlemen follow the same route

down to the clerks office?

A. I don’t know that because I came alone.

BY MR. CUNNINGHAM: No further questions.

BY THE COURT: It is the opinion of the Court that

the sheriff and County Attorney and District Attorney

came out at about the same time, if not at the same

time, but the Court knows that of its own knowledge

that during the time the County Attorney and District

Attorney were conferring the Court had the sheriff in

its office instructing him to get some bailiffs at some

point this morning. Now it is unquestionable but that

the District Attorney can confer with the sheriff or any

other person regarding the selection of a jury but I want

23

to correct something. I had the sheriff in my office prior

to that time in when they went out to select the jury.

The Court is of the opinion that while it may be improper

for the sheriff to have walked out at the same time as

the District Attorney and County Attorney, that error,

if any committed, is harmless error and the motion is

overruled.

On the motion to suppress evidence concerning Mrs.

Browning’s trip to the Clingon home, the ruling of the

Court is going to be that she can testify as to where

she went but not as to what she said when she got there.

She can testify she left the trailer and went over wherever

it was she went and got Mrs. Clingon or whoever she

got and came back.

On the motion to suppress evidence regarding the

broken window in the trailer, I am going to overrule

the motion. ;

24

APPENDIX “‘C”’

(R, Vol. III, pp. 399-400)

IN THE

CIRCUIT COURT OF RANKIN COUNTY,

MISSISSIPPI

JULY 1973 TERM

NO. 9859

STATE OF MISSISSIPPI

VS.

DAVID W. CLINGON

DEFENDANT

MOTION FOR NEW TRIAL

(Filed July 27, 1973)

Comes now David W. Clingon, defendant in the above

styled and numbered cause, and through his attorneys

of record moves the Court to set aside the verdict and

judgment rendered in this cause and in support thereof

would show unto the Court the following facts and matters:

1,

The Court erred in refusing to grant defendant’s per-

emptory instruction at the close of all of the evidence

and after both sides had rested.

2.

The verdict is contrary to the overwhelming weight

of the evidence.

25

3.

The verdict is contrary to the overwhelming weight

of the law.

4.

The Court erred in granting instructions requested

by the State and which objections thereto were entered

of record.

5.

The Court erred in sustaining all objections made by

the State to testimony offered by the defendant.

And for other causes to be shown on a hearing hereof.

Respectfully submitted,

David W. Clingon, Defendant

Barnett, Montgomery, McClintock

& Cunningham

315 Barnett Building

Jackson, Mississippi

By /s/ E. H. Cunningham, Jr.

Attorneys for Defendant

APPENDIX “D”

(Miss. Sup. Ct. Rule 6)

Rule 6

ASSIGNMENTS OF ERROR

(a) The appellant shall file an assignment of error

on or before the due date of appellant’s brief, as provided

infra in Rule 7, Subsection (a). The assignment of errors

shall set out separately and particularly each error asserted

and intended to be urged, to which shall be appended

- a certificate that a copy thereof has been delivered or

mailed, postage prepaid, to opposing counsel. Cross-ap-

peals may be taken without bond, by the appellee and

cross-appellant by filing his cross-assignment of errors at

the time the brief of appellee is due under Rule 7.

(b) No error not distinctly assigned shall be argued

by counsel, except upon request of the Court, but the

Court may, at its option, notice a plain error not assigned

or distinctly specified.

27

APPENDIX “E”’

(Brief of Appellant)

IN THE

SUPREME COURT OF THE STATE OF MISSISSIPPI

NO. 47,902

DAVID W. CLINGON, JR.

APPELLANT

VS.

‘STATE OF MISSISSIPPI

APPELLEE

ASSIGNMENT OF ERRORS

Now comes the Appellant, by his attorneys, and assign

as errors by the lower court, the following

1. That the trial court should have granted the Ap-

pellant’s request for an instruction directing the jury to

find the defendant not guilty (R. 397) and that the court

committed reversible error in refusing said instruction.

(R. 399).

2. The verdict is contrary to the law and evidence.

(R. 399).

3. The trial court erred in granting Instruction Ne.

6 to the State. (R. 379).

4. The trial court erred in allowing the State, over

objections of Appellant, to introduce pictures depicting

28

the body of the deceased, as such pictures were calculated

to prejudice and inflame the jury. (R. 137, 139, 140).

Respectfully submitted,

David W. Clingon

Barnett, Montgomery, McClintock

& Cunningham

315 Barnett Building

Jackson, Mississippi

Attorneys for Appellant

By: /s/ E. H. Cunningham, Jr.

Of Counsel

CERTIFICATE

I, E. H. Cunningham, Jr., of Counsel for Appellant,

hereby certify that I have this date personally delivered

a true copy of the foregoing Assignment of Errors to

Honorable A. F. Summer, Attorney General.

This, the 30th day of November, 1973.

/s/ E. H. Cunningham, Jr.

29

‘APPENDIX “F”’

(Miss. Sup. Ct. Ruie 7)

Rule 7

BRIEFS

(a) Immediately upon receipt of the record. and for

the convenience of attorneys, the Clerk shall notify counsel

of the filing of the record and the due date of briefs

in accordance with this rule. However, failure of the

clerk to give or of a party to receive notice of the filing

of the record shall not excuse any delay in filing briefs.

Appellant’s brief shall be filed not later than ferty

(40) days after the date the record is filed in the office

of the Clerk of this Court.

Appellee’s brief shall be filed not later than sixty

(60) days from the date the record is filed in this Court,

and any rebuttal brief of appellant shall be filed not later

than seventy (70) days after the record is filed herein.

An original and five copies of all briefs shall be filed

with the Clerk. The certificates of appeal required in

criminal cases under Mississippi Code 1942 Annotated sec-

tions 1182-1184 (1956) shall not affect the due dates of

briefs in all cases, civil and criminal, which shall be as

stated above. q

Each case shall be considered at issue after the due

date for filing of briefs has expired, and is thereafter

subject to being set for oral argument and submission

at any time in the discretion of the Court in accordance

with Rule 9.

If the appellant fails to file his brief within the time

herein required. his case shall be dismissed on motion

30

of appellee or on the Court’s motion; and any case so

dismissed shall not be reinstated except as provided by

Rule 18. If the appellee fails to file his brief within

the time herein required, such brief shall be stricken from

the record on motion of appellant or on the Court’s motion.

For the purpose of enforcing the foregoing, the Clerk shall

advise the Court of any delinquency in filing briefs.

(b) The contents of briefs are for the determination

of counsel, but those briefs are of most assistance to the

Court in which there precedes the argument of counsel:

First, a concise statement of the case so far as essential

to an understanding of the questions presented for deter-

mination with specific references to the precise places in

the record where the points discussed may be found; and,

second, a “brief of the argument,” which should consist

of the points or propositions of law, or fact, to be dis-

cussed with the citation of authorities relied upon in their

support.

(c) Appellant’s original and rebuttal briefs together

shall not exceed fifty (50) pages, and appellee’s brief shall

not exceed fifty (50) pages. They shall be typewritten

or printed; and if typewritten, shall be in black non-

copying ink, double-spaced (exclusive of quotations and

footnotes), on white paper, without the name of any per-

son or advertising matter therecn. There shall be ap-

pended thereto a certificate that a copy of it has been

delivered or mailed to opposing counsel; and if mailed,

the certificate to appellant’s original brief must contain

the further statement that it was done not later than

two days before the filing thereof. Every brief shall be

distinctly and plainly printed, or typewritten, and if type-

written, on paper not exceeding eight and one-half inches

in width and i »t exceeding fourteen inches in length.

on one side of every page; and each page shall be num-

3l

bered at the bottom, at or near the center, and there

shall be a blank margin at the top of not less than one

and one-half inches and at the bottom of not less than

one inch, a margin on the right side of not less than

one-half inch, and a blank margin on the left side of

not less than one and one-half inches. The type shall

not be smaller than pica. Subject to other requirements

of these rules, briefs may be reproduced also by offset

printing, positive photocopy, or mimeograph process, or

by any substantially similar method, provided the product

is clear, easily readable, and without glare.

(d) Any brief containing language showing disre-

spect or contempt for the trial court will be stricken from

the files, and this Court will take such further action

relative thereto as it may deem proper.

(e) If oral argument is desired by either party, he

shall give notice thereof on the cover or front page of

his brief by stating thereon, “Oral Argument Requested.”

Such request may be withdrawn by written or oral notice

to the Clerk of the Court and opposing counsel.

(f) The appealing party in all direct appeals and

cross-appeals shall file a brief statement not exceeding

two pages, setting forth the nature and purpose of the

case, the action of the trial court thereon and the points

raised on appeal. The opposing party may file a similar

statement. All such statements, the original and five copies

thereof, shall be filed at the time of the filing of the

briefs. This brief statement shall be separate from the

brief and shall not be physically attached to or included

in the brief. It shall contain a certificate that a copy

thereof has been delivered or mailed to opposing counsel.

(g) The front cover of every brief shall show the

style and number of the case and shal! designate the brief

Pe AER oe FOIE Sonar |

32

as “BRIEF FOR APPELLANT,” “BRIEF FOR AP-

PELLEE,” or “APPELLANT’S REBUTTAL BRIEF.” Each

brief shall contain a topic or subject index identifying

clearly by a sentence or concise stztement the separate

points to be urged before the Court. The points so identi-

fied shall be numbered consecutively, and under each point

shall be az: alphabetical list of the cases, statutes, textbooks,

and other authorities or materials which the brief maker

is relying upon in support of that point, showing the page

or pages of the brief where that case or other authority

is mentioned. In addition to the above, there shall be

a separate alphabetical table of all cases and other author-

ities cited in the brief with a reference to each page of

the brief where the authority is mentioned. All Mississippi

cases shall be cited te both the official Mississippi Reports

and the Southern Reporter. Quotations from cases and

authorities appearing in the text of the brief shall be

followed by a reference to the book and page(s) where

the quotation appears.

AL? CE EEOD CLL AL LD PD 0, SORE Eb NO a aie -

i)

ce

APPENDIX “G”

(Miss. Sup. Ct. Rule 10)

Rule 10

ARGUMENT OF COUNSEL

In the event oral argument is requested under Ruie

7(2), only two counsel will be heard for each party on

the argument of a case. The time allowed therefor will

be determined by the Court in each case and may be

apportioned between the counsel on the same side in their

discretion, provided always that a fair opening of the case

shall be made by the party having the opening and clos-

ing argument.

Fay eet ek i Oia Se Ariel Sh ek Dee a ee ea Lee

Sates Coes

Ce) a oi

PISS NLS