Appendix — Biddy v. Diamond

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APPENDIX A

IN THE SUPREME CouRT OF MISSISSIPPI

No. 47,095

No. 47,100

Mrs. CAaro.LeEe Bippy

v.

STATE OF MISSISSIPPI

[January 8, 1973]

ROBERTSON, Justice:

Mrs. Carolee Biddy was indicted by the Hinds

County Circuit Court Grand Jury for the murder of

her 6-year-old stepdaughter, Mona Biddy. A change

of venue was granted to the Circuit Court of Jackson

County, where appellant was tried for murder, but con-

victed of manslaughter by a Jackson County Petit

Jury. She was sentenced to serve a term of 20 years

in the State Penitentiary.

About 7:55 A.M. on December 3, 1970, appellant

called the Jackson Police Department to report the

disappearance of Mona Biddy, her mentally retarded

stepdaughter. A massive search was conducted by the

Jackson Police Department, law enforcement officers

of Hinds and Rankin Counties, three or four hundred

National Guardsmen, and many civilians and students.

On December 8th, five days after her reported dis-

appearance, Mona’s body was found by two fishermen

in a cove on the Rankin County side of the Barnett

Reservoir. Her body was at the water’s edge and water

from time to time would lap over it.

The first assignment of error was that the corpus

delicti was not proven to the exclusion of every reason-

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able theory consistent with innocence.

The corpus delicti in a homicide case consists of two

fundamental facts: (1) The fact of the death of the

deceased, and (2) The fact of the existence of a crim-

inal agency as the cause of death. Pitts v. State, 43 Miss.

472 (1870). Both facts of the corpus delicti may be

proved by circumstantial evidence. Perkins v. State,

160 Miss. 720, 135 So. 357 (1931).

On the afternoon of December 8, 1970, immediately

after the body had been found, Dr. Forrest Bratley, a

skilled and experienced pathologist, performed a com-

plete autopsy on Mona’s body at the University Med-

ical Center in Jackson. His detailed written findings (a

part of the record) ended with Dr. Bratley’s positive

opinion that the most probable cause of death was

suffocation. The report also stated:

“The complete postmortem examination does not

reveal any natural cause of death nor is there any

evidence of any traumatic injuries which could

have caused death. The toxicological examination

does not reveal the presence of any poison in the

blood or stomach contents.”

On June 24, 1971, Mona Biddy’s body was exhumed,

and a second autopsy performed by Dr. Forrest Bratley

in conjunction with Dr. Donald Dore, Jr., the pathol-

ogist at the Singing River Hospital in Pascagoula,

Mississippi. This autopsy was performed at Barrytown,

Alabama, where the child had been buried.

This second autopsy was performed for the express

purpose of determining whether Mona had swallowed

any Liquid Plumr prior to her death. No signs or in-

dications of any kind were found that the child had

swallowed any caustic or corrosive substance. After a

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very detailed and thorough examination on the witness

stand, Dr. Bratley stated that in his opinion death was

caused by suffocation and that this suffocation was by

external application of force by someone stronger than

the child. Dr. Bratley never wavered in his opinion as

to the cause of death, even though he was extensively

cross-examined as to other possible causes of death and

the fact that findings of death by suffocation are simi-

lar to findings of death from heart disease, shock, laryn-

geal spasm, bronchial spasm, respiratory arrest and

cardiac arrest. From his knowledge gained from per-

sonally performing the first and second autopsies, he

clearly and decisively negatived any other cause of

death. On the second autopsy, he and Dr. Donald Dore

found no evidence whatsoever of Liquid Plumr or other

caustic or corrosive substance in Mona’s digestive tract

or vital orgains. If Mona had had laryngeal spasm it

would have had to have been caused by drinking Liquid

Plumr or other caustic substance.

Dr. Howard Nichols, a skilled and experienced pedia-

trician of Jackson, who had been Mona’s doctor for the

first 114 years of her life, after a detailed study of both

autopsy reports testified that it was his considered opin-

ion that the probable cause of death was suffocation due

to external pressure over her nose and mouth. He fur-

ther testified that it was his opinion that Liquid Plumr

was not involved in Mona’s death.

Dr. Arthur Hume, Associate Professor of Pharma-

cology and Toxicology at the University Medical Center

and Toxicologist for the Mississippi Crime Laboratory,

examined and tested blood samples, tissues of vital

organs, gastric contents and other samples from Mona’s

body on December 9th, 1970, the day after her body

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was found, for poisons and drugs. Dr. Hume testified

that he would consider Liquid Plumr a poison. He

found no poison of any kind in her system. He did

find a slight trace of dramamine, a stomach settler.

Dr. Milton Helpern, the chief medical examiner of

the city of New York, after examining the autopsy

reports, testified that he could not state with certainty

the cause of death. He testified as to possible causes

only.

Dr. Lucien L. Leape, a pediatric surgeon with the

University of Kansas Medical School, who had made a

special study of problems linked with lye ingestion by

children, testified that he could not say what was the

cause of death. He did testify that he had never heard

of any child dying as a result of swallowing Liquid

Plumr.

The testimony of all of these witnesses, and the ex-

hibits introduced, were for the consideration of the

trial jury. We feel that there was ample evidence in the

record to prove the corpus delicti beyond a reasonable

doubt and to the exclusion of every reasonable theory

consistent with innocence.

The next assignment of error was that the two oral

statements made by appellant were inadmissible under

the fifth, sixth, and fourteenth amendments to the

Constitution of the United States.

It must be remembered, in discussing this assignment

of error, that the appellant and her husband, Ted L.

Biddy, asked the Jackson Police Department for its

help in locating their mentally retarded daughter. Every

lead that the police would get was discussed and

examined with the Biddys. The police were in constant

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touch with the Biddys and the Biddys with them. Both

were apparently interested in what had happened to

Mona Biddy.

It must also be kept in mind that, at the specific

instance of the Biddys, the Jackson Police Department

and its trained and skilled investigators and indeed the

law enforcement officers of both Hinds and Rankin

Counties and of the State of Mississippi, had expended

a tremendous amount of time and effort and thought

into solving the problem of what had happened to

Mona.

On December 15, 1970, the police had found another

item of clothing apparently worn by Mona at the time

of her disappearance, so they contacted Mrs. Biddy,

and she called her husband. The end result was that

Mr. and Mrs. Biddy came down to police headquarters.

Lieutenant Wesley L. Reeves, Jackson Police De-

partment, who had been on the case from the beginning,

in the presence of Lieutenant Price of the Jackson

Police Department, and Thomas Zebert, County At-

torney of Rankin County, asked Mrs. Biddy to go over

once again the details of Mona’s disappearance. Reeves

testified that after she had done this:

“Then we told her we’d like to talk to her about

it, and before we did, we would like to advise her

of her rights.

“Q—AIl right. Now, who was in this conference

room at this time?

“A—Lietenant Price, myself, and Mr. Zebert,

Tom Zebert.

“‘Q—And you four were the only ones in there?

“A—Yes sir.

“Q—AlIl right. Then, what did you do then?

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‘“‘A—TI told her that she did not have to talk to

us; that she was entitled to an attorney, and what

she did say could be used against her in court.

“In fact, I then told her that we had a list of her

rights on a statement blank, and I would like for

Lieutenant Price to read them to her, so she would

understand it.

“Lieutenant Price did read this statement of her

rights, one at a time, and then I asked her if she

understood each, and she said she did. Mr. Zebert

asked her if she understood them, and she said

she did.

“We asked her what education she had, and she

said she was a high school graduate. We were con-

vineed that she understood her rights.

“Q—Did she tell you where she had been em-

ployed previously?

““A—Yes sir. She had been employed as a sec-

retary for Michael Baker, an engineering firm.

“Q—What kind of spirit was she in at this time?

‘‘A—She was very cooperative. She seemed to

be in good spirits.”

At this time she signed a written waiver, which set

forth her rights in detail. Reeves, Price and Zebert then

signed as witnesses to her signature. She denied any

involvement in Mona’s disappearance.

Later on December 15th Mrs. Biddy and her hus-

band went in their car to Highway Patrol Headquar-

ters. Her rights were again explained to her and she

signed a second detailed waiver.

On the night of December 16th, Lieutenant Reeves,

while off-duty and at his home, received a telephone

call from the Biddys reporting that appellant had been

attacked and stabbed. The Biddys wanted him to come

to their home, so he called Lieutenant Price and they

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went to the Biddy home. Mrs. Biddy told them about

the attack and how she had gotten away from her

assailant. She had a superficial cut on her hip.

Late at night on December 26, 1970, Lt. Reeves re-

ceived another telephone call from the Biddy home. It

was reported to him that 214-year-old Candice Biddy

had been kidnapped. It was a very cold night and Lt.

Reeves went immediately to the Biddy home. Mrs.

Biddy stated that someone came in the window, came

by Mr. Biddy who was asleep in the den, got Candice,

and went back out the window, tying up the family

dog and putting him into the closet. Mr. Biddy found

Candice, scantily clad, near a ditch in the Biddy back-

yard. Lt. Reeves checked the window that Mrs. Biddy

had pointed out and found dust on the windowsill that

had not been disturbed.

Lt. Reeves was advised by Mr. and Mrs. Biddy that

they were going to Georgia on the next day, December

27th, to visit Mr. Biddy’s parents. Early on the morn-

ing of December 27th Lts. Reeves and Price went back

to the Biddy home, looked around the backyard and

the ditch but could find no evidence that someone had

kidnapped Candice.

Being advised that the Biddys were ready to leave

town and that Mr. Biddy would like to talk to them,

the Biddys followed Reeves and Price back to police

headquarters in their own car.

Out of the presence of Mrs. Biddy, Reeves and Price

told Mr. Biddy that they had found that Mrs. Biddy

had not modeled clothes for a local clothing store and

received clothes for her services, as both Mrs. Biddy

and Mr. Biddy had told them. They also told Mr. Biddy

that Mrs. Biddy had not gone to a health studio once

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a week, as she had told them. Reeves and Price also

told Mr. Biddy that their investigation of the assault

and stabbing of Mrs. Biddy had convinced them that

it did not happen. Mr. Biddy agreed with them. They

also informed Mr. Middy that Candice Biddy had not

been kidnapped as Mrs. Biddy reported. Biddy agreed

with them on this and asked to talk to his wife.

Before they had a chance to talk very much, Reeves

was advised that Mr. Biddy’s partner, Mal Sims, was

downstairs and wanted to see Biddy. While Wright and

Biddy were talking, Reeves and Price told Mrs. Biddy

that they would like to ask her some questions, and

before asking her any questions Lieutenant Reeves said:

“{Djo you understand your rights? You have

been advised of your rights before, and she said,

yes, she understood them.

“At that time, Mr. Biddy and Mr. Wright came

back. Mr. Biddy came into the room, Mr. Wright

stood at the door. He had told me previously that

he was ill, and would have to go home. So, he left.

“Q—Was Mrs. Biddy aware of the fact that Mr.

Wright was there?

‘“‘A—He came to the door, and the door was

open. She was sitting right by the door. They did

not talk, but he talked to Mr. Biddy.

“Q—And did Mr. Biddy come in and talk to

Mrs. Biddy?

‘‘A—Yes sir.

“Q—AlIl right. Tell me what happened.

“A—At that time, Mr. Biddy began to talk to

Mrs. Biddy, and asking her about these different

instances, about the clothing store, about the

health studio, about the stabbing and the kid-

napping.

“She admitted that she had not worked for the

clothing store, and she partially admitted not

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having gone to the health studio as regularly as

she had claimed to be going.

“She admitted that she had faked the stabbing,

and had faked the kidnapping.

“At this time, Mr. Biddy became very emotion-

ally upset, and—

“Q—What about the appearance of the de-

fendant, Mrs. Carolee Biddy? How was she at

this time?

““A—She was a little emotional, not very much,

at that time. She seemed like she wanted to tell

him something.

“At that time I told her ‘Mrs. Biddy, now is a

good time to tell Mr. Biddy if you were involved

in the disappearance of Mona’. I told her that

Mona was gone, she wouldn’t—couldn’t come

back, and that she was afflicted, that the doctors

had told us she would never get any better, and

that now would be a good time to talk to her

husband.

“They were sitting facing each other holding

hands. She looked straight at Mr. Biddy, and

said, ‘Ted, I am sorry I did it.’ She said ‘Ted, I

didn’t mean to do it.’ And she broke down. She

stopped what she was going to say.

Mrs. Biddy then continued her story of what hap-

pened the night of December 2nd. Mona had gotten

hold of some Liquid Plumr at about 7:30 P.M., had

drunk some of it, that it made her violent}¥ ill and she

vomited. Mrs. Biddy tried to feed her but Mona could

not eat. Mrs. Biddy called Dr. Howard Nichols, her

pediatrician, and Dr. Nichols advised her to examine

Mona’s mouth and if her mouth was burned on the

inside to call him back. If Mona’s mouth was not

burned, she was all right and just give her something

to settle her stomach. Mrs. Biddy put Mona to bed

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around 8:30 P.M. Mrs. Biddy went by Mona’s bed

about 10:30 P.M. and found her ‘‘scooted down the

bed” with the bed clothing wrapped around her head.

Lt. Reeves continued:

“She said she unwrapped the bed clothing and

couldn’t get any response from Mona. She said

this frightened her, and she picked Mona up and

took her out to the den, and laid her down on the

couch. She said she just flopped down.

“She said she started to call Ted, but she was

afraid that people would think that she had some-

thing to do with it; that she had realized she was

dead, and she was afraid to call Ted, she said.

“She started to call a doctor, and she just de-

cided to get rid of the body, and take the body so

they wouldn’t blame her with it. She carried her

out and put her in her car and drove to the reser-

voir.

“She drove to a particular spot near the Lake-

view Marina, because she and Ted had spent a

lot of time out there in the past. She said she put

the body down near the bank, kissed it on the

forehead, and left it there so it would be found,

and then she came back home.”

We think that this testimony was properly admitted.

It is perfectly clear to us that Mrs. Biddy thoroughly

understood her rights and that she had intelligently

waived them, not once but twice in writing, and also

several times orally. Even on December 27th, im-

mediately before her statements she acknowledged

that she understood her rights. There are no magic

words that law officers must meticulously repeat each

time they question a person. This conclusion was also

reached in Maguire v. United States, 396 F.2d 327 (9th

Cir. 1968); Sossamon v. State, 432 S.W.2d 469 (Ark.

1968); People v. Hill, 58 Cal. Rptr. 340, 426 P.2d 908

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(1967); State v. Graves, 259 La. 526, 250 So.2d 727

(1971); State v. Rowe, 468 P.2d 1000 (Wash. 1970).

Appellant next contends that the court erred in

granting an instruction advising the jury that should

they convict appellant of manslaughter, the court might

sentence appellant to the penitentiary for a term not

to exceed twenty years.

This is the instruction complained of:

‘The Court instructs the Jury for the State of

Mississippi that if you believe from the evidence

in this case, beyond a reasonable doubt, that the

defendant, Carolee Biddy, is guilty of manslaugh-

ter, you should certify to the Court the following

verdict, to-wit:

We the Jury, find the Defendant guilty of

manslaughter.

Whereupon the Court might sentence the De-

fendant to serve a term of years in the peniten-

tiary, not to exceed 20 years.”

This same contention was made long ago in Steven-

son v. State, 136 Miss. 22, 100 So.525 (1924). The Court

in Stevenson answered this argument in this way:

“In the case now before us the instruction in-

formed the jury that in case of a conviction of

manslaughter the court might sentence the de-

fendant to serve a term of years in the penitentiary,

not to exceed twenty years. We do not think that

this instruction can properly be said to be an invi-

tation or inducement to the jury to compromise on

the lesser offense, and, if this instruction was error

at all, it was not prejudicial to the rights of the ap-

pellant and will not justify a reversal under the

facts of this record.” 136 Miss. at 29-30, 100 So.

at 526.

In Blalock v. State, 148 Miss. 1, 113 So. 627 (1927),

in ruling on a similar manslaughter instruction, the

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Court had this to say:

“In the case before us, the instruction on the

punishment for manslaughter does not call the

jury’s attention to the minimum punishment, and

does not, by inference, lead the jury to believe

that, if so convicted, a light punishment will be

inflicted. We think this distinction important be-

tween the Ellerbe case and this one. It is one thing

to hold out the definition of a minimum punish-

ment, and another to tell the jury of a maximum

punishment. It was, in our opinion, the singling

out, in the Filerbe case, the minimum features of

punishment of manslaughter, that produced the

reversal therein. It is difficult to see how it prej-

udices the right of a person being tried for a crime

for the jury to know what the punishment is that

may follow a conviction for that crime. It is true

that the court administers the punishment, except

in capital cases, and some others not here involved,

and that the jury should not be told anything in

reference to what that punishment will be; but we

fail to see how the present instruction prejudiced

the defendant’s rights. It certainly did not lead the

jury to believe he would be dealt with leniently.

The maximum was stated, and the minimum was

left out.

“In so far as the effect on the jury is concerned,

we cannot see it had any harmful effect upon his

rights. Anything less than twenty years for man-

slaughter is in the discretion of the court, and it

does in no wise prejudice the defendant’s rights

for the jury to know what the maximum would be.

At least, we think it is apparent that his rights

were not so prejudiced as to cause the court to

reverse a judgment therefor. Stevenson v. State,

136 Miss. 22, 100 So. 525. We hold, therefore, that

there is no reversible error in this objection to the

instruction.”’ 148 Miss. at 5, 113 So. at 628.

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The final assignment of error was that the trial court

erred in overruling the motion to vacate the judgment

because the jury verdict was returned on Sunday and

the trial judge sentenced the appellant on Sunday.

The five-day trial was concluded on Friday, Sep-

tember 3, 1971, and the jury on that day, with the ex-

hibits and written instructions of the Court, retired to

the jury room to consider what verdict they should

return. They were unable to reach a verdict and they

resumed their deliberations on Saturday, September

4th. Still being unable to reach a verdict, they resumed

their deliberations about 9:30 A.M., Sunday, Septem-

ber 5th, and about 2:30 P.M., they returned their

verdict in open court. Monday, September 6, 1971,

would be Labor Day. So, the Court inquired of Counsel

for the Defendant whether they desired that sentence

be deferred until a later date. Counsel for the Defen-

dant responded that they did not so desire. Whereupon,

the Court sentenced the Defendant to twenty (20)

years in the State Penitentiary.

In Burrage v. State, 101 Miss. 598, 58 So. 217 (1912),

a murder prosecution was concluded on Saturday

night, and the jury returned its verdict into court at

12:06 A.M. Sunday morning. In that case, it was con-

tended that tht verdict and judgment were null and

void because rendered on Sunday. This Court affirmed

the conviction and sentence, stating:

“It is true that we have no statute providing

that verdicts may be received on Sunday, and it

may be that a judgment rendered on Sunday is

void, but ‘in regard to the delivery and reception

of verdicts a different rule applies, as the rendering

of a verdict is a mere ministerial act, and it is an

act of necessity and charity to receive it and not

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keep the jurors confined until Monday.’ ” 101

Miss. at 606-607, 58 So. at 219.

In State v. Foss, 158 La. 471, 104 So. 211 (1925),

trial was begun on Friday and the taking of evidence

was concluded on Saturday night at 11:20. Counsel for

defendant stated to the court that he was eager to con-

tinue the trial. Whereupon, the prosecutor objected on

the ground that if the trial proceeded and resulted in

conviction that the continuation of the proceeding on

Sunday might be urged as a ground for a new trial.

Defense counsel gave his word that if the case were al-

lowed to proceed no advantage would be taken of the

fact that some of the proceedings had been held on

Sunday. The case proceeded, with argument of counsel

ending at 12:25 A.M. Sunday, at which time the jury

was charged and the verdict was returned and recorded

at 2:00 A.M., Sunday.

Appellate defense counsel (not the trial defense

counsel) urged that these Sunday proceedings were void.

In Foss, the Supreme Court of Louisiana held:

“An accused has no right to stand by and suffer

proceedings to take place on a ‘statutory holiday,’

and after verdict, in a motion to quash, ask to have

the proceedings reversed on the ground that it

was a holiday.

“The objection should not have been postponed

until after verdict, nor urged for the first time in

motion in arrest.

“Moreover, the proceedings on a statutory legal

holiday are not necessarily null. They may be held

on that day by consent. Besides, an accused may be

concluded by his silence, if he chooses to remain

silent when he is represented by counsel amply able

to protect his rights.

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i.

Se ee, Se ed Oe ae ee ee OA RE eM a an in eos de ee cay ae ec

“{A]n accused may waive his constitutional, statu-

tory, or common-law rights, except when forbidden

by some superior counter principle of law deemed

necessary for his protection.

“There is no constitutional, statutory, or com-

mon-law principle which forbids an accused party

from consenting to have his case argued, submitted,

and determined by the jury and court on Sunday or

a statutory legal holiday... .

Oe ee Ne Re Be So Ce, AIO ee ae Be el fe ee lak ee eo Se oS

“There is no question of the waiver of jurisdiction

im this case. The court and the jury were legally

constituted, and were competent to try the issue of

guilt or innocence between the state and the accused.

The only question was whether the case should

proceed to its conclusion on Sunday or be post-

poned to a future day.

“Whether a trial shall take place on one day rather

than another can in no sense be said to affect the

jurisdiction and competence of the court.

“The objection is purely technical and dilatory

in its nature. If it had been made at the proper

time, the case would have been delayed to another

day, with the same result. The defendant has

suffered no detriment caused by the continuance

of the trial on Sunday.

“An accused party at whose instance and on

whose persuasive promise a case has been contin-

ued and concluded on Sunday, and who took the

chances of an acquittal, should not be permitted,

after verdict of conviction, to challenge the regu-

larity and legality of such proceedings.

“To ignore his request and promise to the court

and district attorney whereby he gained a speedy

determination of his case, and to set aside the

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verdict on the ground urged, would be a palpable

miscarriage of justice, destroy the sanctity of the

court, and make a mockery of judicial procedure.

“Our conclusion is that the prohibition of the con-

tinuance of the trial on Sunday of a case already

begun does not affect the jurisdiction and competence

of the court, and is not such as cannot be waived by

an accused party.” 158 La. at 475-478, 104 So. at

212-214. (Emphases added).

The judgment of the Circuit Court is affirmed.

AFFIRMED.

GILLEsPIE, C. J., and PATERSON, INZER and Broom,

J. J., CONCUR.

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APPENDIX B

IN THE SUPREME CouRT oF MIssISssIPPI

No. 47,095

No. 47,100

Mrs. Caro.er Bippy

v.

STATE OF Mississippi

[February 26, 1973]

InzER, Justice:

ON PETITION FOR REHEARING

The only assignment of error in the Petition for

Rehearing is:

THE Court Dip Nor Futiy Consiper THE

ADMISSIBILITY OF THE STATEMENT OF APPELLANT.

In her brief in support of her Petition for Rehearing,

appellant quotes from Miranda v. Arizona, 384 US.

436, 444, 445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 707

(1966) :

If, however, he indicates in any manner and at

any stage of the process that he wishes to consult an

attorney before speaking there can be no question-

ing... .If the individual states that he wants an

attorney, the interrogation must cease until an at-

torney is present. At that time, the individual must

have an opportunity to confer with an attorney and

have him present during any subsequent question-

ing. (Emphasis added).

In our original opinion, we discussed at length the

two occasions on December 15, 1970, when appellant’s

Miranda rights were explained orally in detail, and

when she signed two written waivers setting forth her

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rights in detail. We quoted the testimony of Lt. Reeves

wherein he testified that on December 27, 1970, he

again asked Mrs. Biddy if she understood her rights,

and she replied that she understood them.

After a careful search of the record, we find that no-

where in this record does Mrs. Biddy, the appellant,

request, indicate, hint or express a desire to speak with

or consult an attorney; although she was well aware

that an attorney was available. Nowhere in any shape,

form or fashion does she express a desire to have an

attorney present during any questioning, nor does her

husband express any wish or desire to have an at-

torney present.

All statements that Mrs. Biddy made on December

27, 1970, were made freely and voluntarily and mostly

on the solicitation of her husband.

Ted L. Biddy, the husband of appellant Carolee

Biddy, testified for the defense on direct examination

as follows:

Q. Then, if you remember, what did you say to

Carolee or Detective Price or Reeves?

A. Well, I was up real close to her, I had her

hands in mine, I was right up next to her. I told

her, I says, ‘‘Honey, I’ve got something very serious

to say to you now. They have told me that they

have found no evidence that you were attacked

that night, nor that Candice was abducted last

night and they believe that you staged these as

hoaxes.”

Q. Go right ahead.

A. Well, she admitted that they were true by

shaking her head affirmatively that she had. She

was emotional, of course, during this. I then told

her that there was something else that they had

told me that I wanted to tell her and that was

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that they had told me that they had three wit-

nesses who had seen a woman, fitting her descrip-

tion, walking around in a rose nightgown at the

Main Harbor Marina on the night Mona dis-

appeared.

Q. What did Carolee go on and say, what was

her story?

A. Well, Lieutenant Reeves and Lieutenant Price

started talking to her and asking her about it and

she says, “Well, I said I did not go in to check on

Mona before I went to bed but I did.’’ She said that

she had watched some TV program and had dozed

off, it was 10:30 or 11:00 o’clock, and that she went in

to check on her before going to bed and she couldn’t

see Mona in the bed. She said all she could see was

a big fluffy pillow and she went over to get her out

from under the covers; it was nothing unusual for

Mona, she was a hyperactive child, and she would

be a lot of times under the cover. No one could

sleep with Mona because she was so hyperactive.

She said that she went to get her out from under

the covers and pull her up in the bed, straighten her

up, and the covers were all twisted around her and

that when she raised the covers up that it pulled

Mona up with it and when the covers came off

she fell back and she knew immediately something

was wrong. She said she picked her up on her

shoulder and took her into the den, laid her down

on the couch with her head in her lap and checked

her in every possible way, her breathing, her pulse,

shaking her and finally realized that she was dead.

Q. What did she then tell the policeman that she

did?

A. She said that she panicked. She said she

could just see my ex-wife Ruth’s face; that she

knew she would be blamed. She said she started to

come get me. She started to call the doctor but she

could just see my ex-wife’s face and that she

nanicked. And that she picked her up, put her in

4b

the front seat of our car; she said she drove and

didn’t know where she was going but the next

thing she remembers she was on the reservoir levee

road and that she went to the area of the Lake View

Marina, took her body out of the car, took her

over to the edge of the bank on a grassy spot, laid

her down, kissed her and drove back home. She

said she couldn’t remember anything about driv-

ing back home except that the car almost went out

of control one time.

In summary, it is apparent from the record in this

case that all of the constitutional rights of Mrs. Biddy

had been fully explained to her, she fully understood

them, and with this knowledge, she freely and volun-

tarily made the statements complained of, mostly at

the solicitation of her husband. It is not contended that

she was in any way coerced, threatened or made any

promises by the officers. She never at any time ex-

pressed any desire to speak with or consult with the

attorney with whom her husband conferred. Neither

did she express any desire to consult with any other

attorney or have an attorney present before she made

any statement. A statement made under these circum-

stances certainly should be and is admissible in evi-

dence.

For the reasons stated the petition for rehearing is

denied.

ALL Justices CoNCUR.

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le

APPENDIX C

[Filed April 23, 1974]

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF MISSISSIPPI

SOUTHERN DIVISION

CIVIL ACTION NO. 874-2(C)

CAROLEE BIDDY,

Applicant,

v.

JACK REED, WARDEN, MISSISSIPPI

STATE PENITENTIARY, ET AL

Respondents.

The applicant (Carolee Biddy) filed her application

for a writ of habeas corpus directed to the respondents

wherein she requested relief from a twenty year sen-

tence by the Circuit Court of Jackson County for the

crime of manslaughter. Applicant was convicted of

killing her retarded six year old stepdaughter on the

evening of December 2, 1970. The child was found bya

searching party on the reservoir about thirteen miles

away from her home on December 8, 1970, resulting in

an intensive investigation of the crime by the city of

Jackson police officers. Applicant and her husband

(father of the deceased child) cooperated with the police

in their search and investigation and became friendly

with Officers Reeves and Price who were assigned to

the case. These peace officers visited the Biddys in their

home and discussed their problems and progress with

the case very freely on innumerable occasions.

Applicant, as stepmother of this retarded child, was

always under consideration as a suspect. The officers

2c

requested applicant’s husband to take a lie detector

test and requested him to request applicant to take

such polygraph test at the same time. Both of them

failed the test. Applicant insisted that some maniac

was loose in the area and that he was responsible for

the crime. Applicant pretended as a hoax that someone

had stolen her own child through the window of its

room and had left it in their yard in extremely cold

weather. She next contended as another hoax that

someone had attacked her and had inflicted certain

wounds on her body in the skirmish. She later admitted

the falsity of both representations. The officers investi-

gated leads and checked on information almost daily

with the Biddys at their home and at police head-

quarters in Jackson. Applicant was finally arrested and

fingerprinted and booked for the crime of murder at

police headquarters on December 27, 1970. The Biddys

were at police headquarters at the officers’ request prior

to the Biddy’s planned trip to Mr. Biddy’s family in

Georgia. The investigations of these officers up until

that time were routine investigations, and never ac-

cusatory in nature. Charles Wright, a young attorney

and friend of the family, employed John R. Poole, an

experienced criminal lawyer, to represent the Biddys

on December 27, 1970.

The facts in this case show that on the 15th day of

December 1970 that these officers explained the M7-

randa rights to the applicant who signed a waiver.

Another printed form of Miranda rights was signed by

applicant at a later date not given and not shown in

this record. In each instance she was positively told

that before any questions were asked, though she was

not at the time in custody, that she must understand

that she had the right to remain silent and answer

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nothing; and that anything she said could be used

against her in court, and that she had the right to talk

to a lawyer and to have him with her during question-

ing; that if she could not afford a lawyer one would be

appointed for her before any questioning, if she wished;

and that she had the right to stop answering any

questions at any time until she talked to a lawyer. She

had a high school education and had been a secretary

for a business firm. The officers testified that she under-

stood her rights.

The court finds as a fact that applicant is an intelli-

gent person and that she fully and completely under-

stood her Miranda rights at all times, and that she

acted with full knowledge of her rights at such times.

Attorney Charles Wright had known Mrs. Biddy since

1967. Wright represented her husband in his business

in Jackson. He was at the Biddy home from time to

time when the officers were there and participated in

discussions. He participated in the manhunt which

resulted in finding the dead child at the reservoir on

December 8, 1970.

The officers began talking with the Biddys on De-

cember 3, 1970, the day after the child disappeared. On

December 15, applicant voluntarily went to police

headquarters and identified the clothing in which the

child was clad when found. Her attorney (Poole) told

her not to sign anything for the officers. John Poole

testified that he told the police that he did not want

applicant to make any statements in his absence. The

officers on this particular occasion (December 27, 1970)

did not read to applicant her Miranda rights, but

simply asked her if she understood such rights which

had been previously explained and expressly waived,

4e

and she answered in the affirmative. On December 27,

1970 after her attorney (Poole) had left the police sta-

tion and promised to return the next morning, the ap-

plicant surprised the officers by voluntarily stating to

them and to her husband for the first time that she

found the child dead in bed and carried it and left it at

the reservoir. She never signed a statement to that ef-

fect and was not asked to do so. On that occasion she

promised the officers to accompany them the next

morning to the reservoir where she would show them

exactly where she deposited the body of the child. Her

attorney (Poole) came to police headquarters early the

next morning (December 28, 1970) after applicant’s

return from the reservoir.

Applicant was not arrested and booked for murder

until the afternoon of December 27, 1970 when she

first told the officers and her husband some of the facts

about her participation in this crime. Prior thereto she

was a mere suspect with others who were being in-

vestigated, but from that date she was accused of

murder and was promptly arrested and charged with

that crime.

There is nothing in this record before the Court to

show that what applicant told the Court on December

27, 1970 was of any aid or benefit to the state, and the

record does not show that the state offered anything

at the trial which applicant divulged to them at such

time. Due process requires that a criminal must under-

stand her Miranda rights, and that such rights may

not be abused with a resulting unfair conviction for that

crime.

The applicant has not shown this Court by the

greater weight of the more convincing evidence that

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any such advantage was taken of her by these officers

which resulted in any unfair or improper conviction for

this offense. She was convicted under this murder in-

dictment of the offense of manslaughter of this child

without any assistance from her for anything that she

said to the officers, or did for the officers. She never

signed any statement confessing any complicity in this

crime. She showed the officers on December 28, 1970

where she placed the child at the reservoir on December

3, 1970, but the child’s body was found out there on the

reservoir by a searching party on December 8, 1970

without any assistance from applicant. The officers did,

indeed, resourcefully and skillfully investigate this

crime, and talked with this suspect extensively on

numerous occasions about the crime, but always with

no effect. Mr. Biddy repeatedly evinced his convictions

as to his wife’s innocence by assuring the officers that

applicant loved the child and thought too much of her

to hurt her.

The court finds as a fact and concludes as a matter

of law that applicant was not convicted of this crime

by reason of any unfair assistance from her to these

officers in violation of her civil rights, but the facts are

that she never told these officers the facts to this date

as to how she committed this crime to take the life of

this child. She is even now still contending at this time

in this case that this child was suffocated by voluntarily

drinking liquid plumber.

An autopsy of the body of this child was made and

the experts could not find any liquid plumber in the

autopsy. Some contention is made here that the state

did not furnish applicant with all of the facts about this

autopsy to have enabled them to give the Court and

6c

jury the benefit of their best expert advice as to the

cause of death of this child. The four photographs of

the throat of this child were and are not sufficiently

clear as to reveal to the examiner the existence or not

of swelling in this area which was actually clearer and

more revealing from the original material itself. Appli-

cant’s doctors had this original material in hand for

weeks before the second trial of this case which resulted

in this conviction. This child had been buried for some

time before this autopsy, but the material itself revealed

vastly more than did these pictures as to edema, or

swelling in the area. The applicant and her experts

could not possibly be adversely affected by the neglect

to deliver these pictures and slides to them.

Expert testimony must be carefully analyzed and

applied in this delicate area very cautiously. This Court

is not impressed with this expert testimony and rea-

sonable inferences which it deduces from it that these

doctors are in a position to even give us the benefit of

an educated guess as to any advantages or effect, or

result of another trial. The District Attorney who

tried this case testifies that he withheld nothing from

applicant’s attorneys and gave them all of the informa-

tion which he had for their examination for weeks

before the trial.

Among other things, applicant insists that her vested

rights were violated in this conviction in that the state

of Mississippi suppressed favorable evidence to her in

violation of the rule announced in Brady v. Maryland.

1 Brady v. Maryland, 83 S.Ct. 1194 holds: “We now hold that

the suppression by the prosecution of evidence favorable to an

accused upon request violates due process where the evidence is

material either to guilt or to punishment, irrespective of the good

faith or bad faith of the prosecution.”

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7c

Or July 27, 1971 the state court ordered the state of

Mississippi to furnish the applicant through her at-

torneys and medical authorities for the purpose of

analysis, study and evaluation the following material:

(1) A duplicate of all microscopic slides and the par-

affin blocks from which the slides were made of both

autopsies; (2) A sample of all tissues taken from the

body which were not embedded in the paraffin blocks;

(3) All pictures taken at either autopsies; (4) A com-

plete autopsy report of the second autopsy; (5) Any

further medical information relating to the death of

Mona Biddy in the hands of the State of Mississippi.

The contention of applicant’s counsel to be properly

understood and correctly applied must be considered

in proper context. The applicant objects here for the

first time to four certain photographs and slides made

from the autopsy material of the victim’s throat. The

applicant contended on the first trial which resulted in

a mistrial that this child died from having ingested a

drink of liquid plumber. In furtherance of that defense,

the applicant introduced as her exhibit in the case a

specimen of liquid plumber containing the 6% solution

of potassium hydroxide. The second autopsy was per-

formed by the state in Alabama where the child was

buried. Apparently, the sole objective of this autopsy

was for the purpose of checking and testing the body

of this child to see whether or not it contained any

presence or effect of liquid plumber. The result was not

any evidence against the applicant, but the second

autopsy simply showed that the child died of strangu-

lation, not in any wise induced by any swelling of the

larynx and throat area occasioned by any liquid plumb-

er. The autopsy revealed no liquid plumber in the body

of the child.

8¢c

The applicant complains here for the first time that

four photographs made of this autopsy material and

some slides were not delivered to applicant, or her

counsel before trial. The evidence shows this Court in

such connection that the July 27, 1971 order of the

state court was substantially complied with by the

state in the trial of this case and that any other or

further compliance with the order of the court was

waived.? The applicant says that her experts were un-

able in the brief time afforded at the trial to sufficiently

examine and analyze and criticize these photographs

and slides. Significantly, this second autopsy revealed

facts already known to applicant, i.e., namely that all

information given by applicant and all of her conten-

tions were false and not in any wise supported by facts.

The facts are that the attorneys for the applicant and

more specifically their medical witness had the materials

(sections of the child’s throat) themselves in hand for

weeks before the trial, and could have made photo-

graphs and slides as desired at all times. But the ap-

plicant never complained at the trial of any such neg-

lect, or violation of any duty of the state under the

court order to have delivered such material to their

medical witness at an earlier time; and never at such

trial requested any delay, or indulgence to examine and

?In United States of America v. Teodulo Diaz-Rodriguez, (QCA)

478 F.2d 1005, 1007-8 in analyzing and applying Brady v. Maryland,

supra, said: “A test has been phrased whether the undisclosed evi-

dence was so critical that its absence prevented the defendant

from receiving a fair trial under the Constitution. United States

v. Hibler, 463 F.2d 455, 459 (9th Cir. 1972). But materiality—

the existence of prejudice—is essential. A new trial is not auto-

matically required whenever the prosecution’s files subsequently

reveals evidence of possible utility to the defense but of unlikely

weight in altering the verdict. Giglio v. United States, 405 U.S.

150, 154, 92 S.Ct. 763, 31 L.Ed.2d 105 (1972).”

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analyze such material as desired. The contention now

made was clearly waived.

The evidence which the state discovered from this

autopsy was not under such circumstances suppressed

by the prosecution. Nothing favorable to the applicant

in her defense of this indictment was revealed by the

process. The second autopsy simply revealed unmis-

takably that the applicant’s defense that this child

died by reason of having drunk liquid plumber was not

true. The testimony showed to the satisfaction of the

jury beyond every reasonable doubt that this child was

manually suffocated and did not suffocate by reason of

any swelling occasioned by any ingestion of any poison

such as liquid plumber. The facts and circumstances

here show and even demonstrate that the naked eye

can best detect swelling, and that slides and photo-

graphs of the area are of little value.

The evidence and testimony adduced by the appli-

cant simply does not show this Court by the greater

weight of the more convincing evidence that any con-

stitutional right whatever of the applicant was violated

by her conviction in this case. The Court finds as a fact

and concludes as a matter of law that the applicant

has failed to show the Court by a preponderance of the

credible evidence that her conviction is void for any

such reason in this case. The application of Carolee

Biddy for a Writ of habeas corpus in this case is without

merit and will be denied.

A judgment accordingly may be presented by the

respondents to the Court for entry within five days

after this date under the rules of this Court.

April 23, 1974

/s/ Harotp Cox

UNITED STATES DISTRICT JUDGE

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1d

APPENDIX D

Carolee BIDDY, Petitioner-Appellant,

v.

Fred DIAMOND, Sheriff, Jackson County Jail, and

Jack Reed, Warden, Mississippi Penitentiary, Re-

spondents- Appellees.

No. 74-2385.

United States Court of Appeals,

Fifth Circuit.

July 18, 1975.

State prisoner filed a petition for a writ of habeas

corpus. The United States District Court for the South-

ern District of Mississippi, William Harold Cox, J.,

denied the petition, and petitioner appealed. The Court

of Appeals, Roney, Circuit Judge, held that full Miran-

da warnings were not required on December 27 and 28,

dates of defendant’s damaging statement and identifi-

cation of place where she had left body, where defendant

on December 27 in response to police question expressly

stated that she remembered her rights as previously ex-

plained to her, even though defendant had on Decem-

ber 15 requested an attorney, since defendant had not

been denied opportunity to consult with her attorney

when requested; that, in homicide prosecution, state

did not impermissibly suppress exculpatory evidence

consisting of photographs, taken during autopsy, of

physical sections of victim’s body; and that failure to

produce photographs pursuant to discovery order of

state court, even if error as a state procedural matter,

did not rise to a constitutional level.

Affirmed.

2d

1. Courts 406.1(6)

Court of Appeals was not required to address appel-

lant’s points which, regardless of their merit, would not

control outcome of appeal.

2. Criminal Law 406(2)

When a person knows her rights, and has even exer-

cised the right to counsel, and has talked with counsel,

later voluntary admissions can constitute a waiver of

the rights to counsel and to remain silent.

3. Criminal Law 412.2(5)

There is no requirement that an accused be contin-

ually reminded of his rights once he has intelligently

waived them.

4, Criminal Law 412.2(5)

Repeated warnings are not necessary to a finding

that a defendant, with full knowledge of his rights

knowingly and intelligently waived them.

5. Criminal Law 412.2(3)

Full Miranda warnings were not required on Decem-

ber 27 and 28, dates of defendant’s damaging statement

and identification of place where she had left body,

where defendant on December 27 in response to police

question expressly stated that she remembered her

rights as previously explained to her, even though de-

fendant had on December 15 requested an attorney,

since defendant had not been denied opportunity to

consult with her attorney when requested. U.S.C.A.

Const. Amend. 6.

6. Criminal Law 641.4(1)

Even. though an attorney is once requested or re-

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tained, the right to an attorney can be subsequently

waived, U.S.C.A.Const. Amend. 6.

7. Criminal Law 412.2(4)

A person may voluntarily speak without an attorney

present, even though he knows one to be on the way

upon request, if the police actions are not compelling.

U.S.C.A.Const. Amend. 6.

8. Criminal Law 351(2)

Where defendant was positively told more than once

during morning that, if she did not want to, she did

not have to make trip to reservoir, which she subse-

quently identified as place where she had left body, but

defendant insisted that that was what she wanted to

do, and thus, with full knowledge of her rights and

additional admonition that she need not go, there was

no legal impediment to preclude defendant from waiv-

ing those rights and making trip, and, having done so

voluntarily, evidence as to conduct could be used at

her trial. U.S.C.A.Const. Amends. 5, 6.

9. Criminal Law 700

In homicide prosecution, state did not impermissibly

suppress exculpatory evidence consisting of photographs,

taken during autopsy, of physical sections of victim’s

body, where state had no experts who would testify

that photographs revealed any doubt as to cause of

death, photographs were introduced at trial without

objection and there was no indication the defense could

not have had its experts take as much time as they

needed to study photographs during trial.

10. Criminal Law 627.8(6)

Failure to produce photographs pursuant to discov-

4d

ery order of state court, even if error as a state pro-

cedural matter, did not rise to a constitutional level.

11. Habeas Corpus 45.3(1)

Point relating to newly discovered evidence which

had not been presented to state court could not be re-

viewed by a federal court on petition for habeas corpus.

Appeal from the United States District Court for the

Southern District of Mississippi.

Before GOLDBERG and RONEY, Circuit Judges,

and GROOMS, District Judge.

RONEY, Circuit Judge:

Petitioner, Carolee Biddy, was convicted in a Missis-

sippi state court of manslaughter of her six-year old

stepdaughter. The facts of the case are recited in some

detail in the opinions of the Supreme Court of Missis-

sippi affirming the conviction and denying the petition

for rehearing at Biddy v. State, 277 So.2d 115 (Miss.

1973).

From the denial of a petition for writ of habeas corpus,

after a full evidentiary hearing, petitioner presents es-

sentially two appeal issues: first, whether admissions

and conduct of appellant, used against her at the trial,

were induced by the police in violation of her Miranda

rights, and her constitutional rights not to testify against

herself and to have effective assistance of counsel; and

second, whether petitioner’s constitutional right to due

process was violated by alleged prosecutorial suppres-

sion of evidence, four photographs which were with-

held by the state from discovery but which were intro-

duced at trial. Finding no error, we affirm.

We are at once met with confusion as to the facts of

OTA WS HP TNE OM CAE OE Pt ARE im : uty we 4 |

J

5d

the case because of the failure of the district court to

resolve some apparent conflicts in the evidence and to

reflect in its opinion specific facts which the appellant

indicates to be critical to the success of her petition.

We have made a thorough review of the state court

record, the testimony before the district court, and the

extensive briefs and oral argument, however; and have

concluded that, even with the inadequacy of the dis-

trict court’s opinion, the court cannot be held to be

clearly erroneous as to the controlling facts, and that

it was not in error as a matter of law in denying the

petition for writ of habeas corpus. In other words, we

have approached this case from the standpoint of

whether, assuming the facts to be as oriented by the

appellant but without the conclusory or judgmental

overlay given them in appellant’s brief, there is any

base upon which to reverse the district court’s refusal

to grant the petitioner relief from the state court

conviction.

A brief outline of the facts of the case will furnish

sufficient base for an explanation of our decision, A full

recitation as to all the details of the case would serve

no useful purpose.

Early on the morning of December 3, 1970. petitioner

called the Jackson Police Department to report the dis-

appearance of Mona Biddy, her six-year old, mentally

retarded stepdaughter. An extensive search for the child

was conducted by the police, which eventually involved

various other law enforcement officers of surrounding

counties, three or four hundred National Guardsmen,

and many volunteer civilians. On December 8, five days

after her reported disappearance, Mona’s body was

found on the water’s edge at a reservoir, about thirteen

miles from the Biddy residence.

ae ee ee Piaisik

6d

Wesley Reeves and Harry Price, the detectives as-

signed by the Jackson Police Department to conduct

the investigation into Mona’s disappearance, were in

close contact with the Biddy family during the follow-

ing weeks. On December 15, petitioner agreed to ac-

company these officers to police headquarters in order

to identify an item of clothing apparently worn by

Mona at the time of her disappearance. After the cloth-

ing had been identified, petitioner was asked if she

would be willing to talk to the detectives about the

details of Mona’s disappearance. She agreed to do so

and was taken to a conference room, accompanied by

Reeves, Price, and a county attorney named Tom

Zebert. She was then advised of her Miranda rights

(Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16

L.Ed.2d 694 (1966) ), and signed a written waiver in-

dicating that she understood those rights. Reeves, Price,

and Zebert each testified that they were convinced that

she understood her rights and that her waiver was vol-

untary. In response to questioning on this occasion,

she denied any involvement in Mona’s disappearance.

Later that day, prior to taking a polygraph test,

petitioner was again advised of her rights and she signed

a second waiver form. She further evidenced her under-

standing of her rights by asking for “her lawyer’ dur-

ing the administering of the polygraph test. Upon that

request, the test was halted and petitioner was ques-

tioned no further. That evening Detectives Reeves and

Price stopped by the Biddy home and were advised by

an attorney-friend of the Biddys, Charles Wright, that

this was neither the time nor place for further question-

ing of petitioner. Accordingly, they departed without

talking to Mrs. Biddy about Mona’s disappearance.

7d

During the next ten days, although the detectives

did not further pursue questioning petitioner about

Mona’s disappearance, they were, on at least two occa-

sions, called to the Biddy residence to investigate rather

bizarre incidents involving petitioner and her family.

On the evening of December 16, they investigated a

report that Mrs. Biddy had been attacked and stabbed

in the hip by an unknown assailant. They received

another call from the Biddy home on the night of De-

cember 26. It was reported that petitioner’s two and

one-half year old daughter, Candice, had been abducted.

By the time the detectives arrived at the Biddy resi-

dence, the child had been found by Mr. Biddy near a

ditch in the backyard. The detectives found little evi-

dence to bear out petitioner’s story regarding each in-

cident and concluded that Mrs. Biddy’s accounts were

““llogical.” Mrs. Biddy later admitted that she staged

both incidents.

On December 27, the Biddys were asked to come to

police headquarters before they left on a trip to Georgia

to visit Mr. Biddy’s parents. Before leaving their house,

and in the presence of the police officers, Mr. Biddy

asked his business partner, Mal Sims, to call their

attorney, Charles Wright, and ask him to meet them

at the police station. Sims complied with the request.

At the police station, the detectives separated the

two and talked with Mr. Biddy about several things

that petitioner had told them, which they considered

to be untrue. About this time Attorney Wright arrived

and stated that he was ill and would summon another

attorney. While Mr. Biddy was talking to the attorney,

the detectives indicated they might want to question

Mrs. Biddy and asked her, “Do you understand your

8d

rights?” To this she responded that she understood

them. Then Mr. Biddy came in and discussed several

things with petitioner with the detectives present. Dur-

ing that discussion, she made the crucial statement to

him that she had found the child dead from having

swallowed Liquid Plumr and, fearing that someone

would blame her for it, had taken the body to the

reservoir. After this statement she was booked for mur-

der. Subsequently, the attorney summoned by Wright

arrived and told petitioner not to talk to the police

unless he was present. The next morning she took the

police to the reservoir and identified the place where

she had left the body. It was the same place where the

body had been found.

Petitioner makes five separate contentions, under her

general Miranda attack, on the use at trial of the state-

ment she made on December 27 and her showing, on

December 28, the place at the reservoir where she had

left the child’s body. Parenthetically, we have noted

petitioner’s complaint that the district court was in

error in stating that nothing told to the police on De-

cember 27 was of any aid or benefit to the state, that

the record did not indicate that anything she said was

offered at the trial, and that her actions on December

28 were of no assistance in the state’s case. These state-

ments were clearly erroneous, but do not seem to have

affected the district court’s consideration of the con-

trolling issues in the case. For the purposes of consider-

ing this appeal, we assume that the use of petitioner’s

statements and conduct on December 27 and 28 in the

state trial was crucial to the successful prosecution and

conviction of the petitioner.

[1] The first two of petitioner’s five points need not

=

9d

be addressed because, regardless of their merit, they

would not control the outcome of this appeal. First,

petitioner contends that the waivers signed on Decem-

ber 15 of her Sixth Amendment rights were vitiated in

view of her later request for a lawyer, and that in any

event the waivers were “stale” by December 27 when

she made the statements admitted at trial. Our decision

does not depend upon the continued legal effectiveness

of those waivers.

The next question posed by petitioner is whether the

oral warning, framed as a question as to whether she

remembered her rights on December 27, just before

she made the damaging statement, was an effective

Miranda warning, in light of her request for a lawyer on

December 15. We think that it was.

The critical legal question is whether the overall

activity of the police sufficiently comports with the

requirements concerning the Miranda warnings to in-

sulate the conduct and admissions against suppression.

[2-6] It is clear that when a person knows her rights,

and has even exercised the right to counsel, talking

with counsel, later voluntary admissions can consti-

tute a waiver of the rights to counsel and to remain

silent. United States v. Brown, 459 F.2d 319 (5th Cir.

1971), cert. denied, 409 U.S. 864, 93 S.Ct. 155, 34

L.Ed.2d 111 (1972). The question is whether the full

Miranda warnings were required on December 27 and

28, even though in response to the police question

petitioner expressly stated that she remembered her

rights as previously explained to her. We think not.

We have previously held that “there is no requirement

than an accused be continually reminded of his rights

once he has intelligently waived them.” United States

v. Anthony, 474 F.2d 770, 773 (5th Cir. 1973). A great

10d

many courts, state and federal, have likewise held that

repeated warnings are not necessary to a finding that a

defendant, with full knowledge of his rights, knowingly

and intelligently waived them. United States v.

Anthony, 474 F.2d 770 (5th Cir. 1973); Miller v.

United States, 396 F.2d 492 (Sth Cir. 1968); Maguire v.

United States, 396 F.2d 327 (9th Cir. 1968), cert.

denied, 393 U.S. 1099, 89 S.Ct. 897, 21 L.Ed.2d 792

(1969); Gorman v. United States, 380 F.2d 158 (1st

Cir. 1967); United States v. Kinsey, 352 F.Supp. 1176

(E.D.Pa.1972); State v. Gallagher, 36 Ohio App.2d 29,

301 N.E.2d 888 (1973); Commonwealth v. Abrams,

443 Pa. 295, 278 A.2d 902 (1971); State v. Rowe, 77

Wash.2d 955, 468 P.2d 1000 (1970); State v. Blanchey,

75 Wash.2d 926, 454 P.2d 841 (1969); Brown v. State,

6 Md.App. 564, 252 A.2d 272 (1969); State v. Magee,

52 N.J. 352, 245 A.2d 339 (1968); People v. Hill, 39

Ill.2d 125, 233 N.E.2d 367 (1968); State v. Lucia, 74

Wash.2d 819, 447 P.2d 606 (1968); People v. Schenk,

24 Cal.App.3d 233, 101 Cal.Rptr. 75 (1972); People v.

Brockman, 2 Cal.App.3d 1002, 83 Cal.Rptr. 70 (Ct.

App.1969).

We think that a further delineation on December 27

of petitioner’s rights, which she had stated that she

understood from prior explanations would have been

needlessly repetitious. The district court was not

clearly erroneous in finding that Mrs. Biddy fully

understood her rights at the time she made the state-

ment to her husband with the detectives present.

The argument that the request for an attorney on

December 15 effectively foreclosed the legality of the

activity on December 27 and 28 is not compelling. A

series of cases have held that even though an attorney

is once requested or retained the right to an attorney

, BLEED THROUGH

~~ on8

11d

can be subequently waived. United States v. Hodge,

487 F.2d 945 (5th Cir. 1973); United States v. Dority,

487 F.2d 846 (6th Cir. 1973); United States v. Spring-

er, 460 F.2d 1344 (7th Cir.), cert. denied, 409 U.S. 873,

93 S.Ct. 205, 34 L.Ed.2d 125 (1972); United States v.

Brown, 459 F.2d 319 (5th Cir. 1971), cert. denied, 409

U.S. 864, 93 S.Ct. 155, 34 L.Ed.2d 111 (1972); United

States v. Green, 433 F.2d 946 (5th Cir. 1970); Wilson

v. United States, 398 F.2d 331 (5th Cir. 1968), cert.

denied, 393 U.S. 1069, 89 S.Ct. 727, 21 L.Ed.2d 712

(1969); Coughlan v. United States, 391 F.2d 371 (9th

Cir.), cert. denied, 393 U.S. 870, 89 S.Ct. 159, 21

L.Ed.2d 139 (1968).

It appears from the facts of each case relied upon by

the petitioner that, even though an attorney was re-

quested, the defendants were not permitted the op-

portunity to exercise their right to consult with an

attorney. United States v. Blair, 470 F.2d 331 (5th

Cir. 1972), cert. denied, Crews v. United States, 411

U.S. 908, 93 S.Ct. 1536, 36 L.Ed.2d 197 (1973); United

States v. Priest, 409 F.2d 491 (5th Cir. 1969); United

States v. Slaughter, 366 F.2d 833 (4th Cir. 1966). In the

instant case, however, the petitioner was given the

opportunity to consult with her attorney when re-

quested. Even after consulting with her attorney she

was free to remain silent and to have her attorney pres-

ent during any interrogation. Having full knowledge of

these rights, she could knowingly and voluntarily waive

them on December 27. Cf. United States v. Brown,

supra; United States v. Daulton, 488 F.2d 524 (5th Cir.

1973), cert. denied, 416 U.S. 989, 94 S.Ct. 2396, 40

L.Ed.2d 767 (1974). The district court was not clearly

erroneous in finding that she did, in fact, waive those

rights.

i2d

[7] The fourth issue as to Miranda is stated in the

appellant’s brief as follows:

Whether any form of warning given on the morning

of December 27, 1970, could comport with the re-

quirements of Miranda when the police officer who

claims to have given the warning, induces the damag-

ing statements, after the appellant’s attorney (ob-

tained for appellant by her husband) left the police

station because of his illness, and before the arrival of

a second attorney known by police to be on his way to

represent appellant, and whether said damaging

statements elicited on December 27, 1970, can be

admitted against her at her state trial.

The cases heretofore cited clearly indicate that the above

issue must be resolved against the petitioner. A person

may voluntarily speak without an attorney present,

even though he knows one to be on the way upon re-

quest, if the police actions are not compelling. There is

some question as to whether the activity between the

police and the petitioner fall within the realm of “‘inter-

rogation”’ as envisaged by Miranda, but even assuming

the fact, with the husband present, and the knowledge

that she need not speak until her attorney arrives, there

is no legal impediment to voluntary statements.

[8] The last issue posed by appellant’s brief in con-

nection with the Miranda issue is this:

Whether damaging admissions and conduct of ap-

pellant, induced by the police without any Miranda

warning on the morning of December 28, 1970, after

her arrest and when the police were specifically told

by appellant’s counsel that they were not to further

question her can be admitted in evidence against her

at her state trial.

The facts and law again resolve this issue against peti-

tioner. She was positively told more than once on the

- ~~

13d

morning of December 28 that she did not have to make

the trip to the reservoir if she did not want to. She in-

sisted that this is what she wanted to do. With full

knowledge of her rights and the additional admonition

that she need not go, there was no legal impediment to

waiving those rights and making the trip. Having done

so voluntarily, the conduct could be used at her triai.

Outside of the specific points raised by the petition,

we have viewed the overall conduct of the police to see

if we could sense unfair conduct that might, although

technically correct, nevertheless indicate a pattern that

is contrary to the spirit of the Fifth and Sixth Amend-

ments and the progeny of Miranda. With this over-

view, we do not have the deep and abiding conviction

necessary for a finding that the district court was clearly

erroneous in its findings and conclusions of law.

The second major point raised by petitioner on appeal

concerns four photographs, taken during the second

autopsy, of physical sections of Mona Biddy’s body.

The first autopsy had been performed within hours

after the discovery of Mona Biddy’s body. During the

first trial of this cause, which ended in a mistrial, the

defense interposed a theory that the death of the child

had been caused by laryngeal edema resulting from the

ingestion of a caustic solution known as Liquid Plumr,

a household drain cleaner. Between the first and second

trial, the child’s body was exhumed and a second au-

topsy performed, during which the neck organs were

removed, placed in a preservative, and subsequently

photographed in the laboratory. From the neck organs

themselves certain microscopic slides were made and

these, along with the paraffin blocks used in preparing

the sections and the neck organs themselves, were

turned over to the defendant’s medical expert. Although

14d

the prosecutor was under a court order to turn over all

medical data to the petitioner, the film from which the

photographs were made was turned over to the Jack-

son Police Detective Bureau for developing. The state’s

medical witness could not recall whether he saw the

photographs after their development.

At the second trial, the four photographs were ad-

mitted into evidence without objection, after defen-

dant’s attorney stated that he had not seen them before

trial and asked for a brief recess. A five minute recess

was taken. The defense’s experts testified that they

could not determine the cause of death of the child

from the information contained in the autopsy report

or in these photographs.

Petitioner’s medical experts now say, and they so

testified before the district court, that they can state

with a reasonable degree of medical probability that

the cause of death of Mona Biddy was the ingestion of

Liquid Plumr, rather than strangulation or suffocation.

These opinions were arrived at after reconsidering the

photographs.

These photographs raise two problems, one of which

we consider here, and one of which we do not.

(9, 10] To the extent that the argument is based on

Brady v. Maryland, 373 U.S. 83, 83 8.Ct. 1194, 10

L.Ed.2d 215 (1963), and a theory of state suppression

of exculpatory evidence, we find no merit to the peti-

tioner’s contention, and affirm the district court’s

ruling. The state had no experts who would testify that

the photographs revealed any doubt as to the cause of

death, and there was, in fact, no suppression of evi-

dence. The photographs were introduced at trial with-

out objection, and there is no indication that the de-

mites ==——E sen Ae et eee

: --_

15d

fense could not have had its experts take as much time

as they needed to study the photographs during the

trial. The case simply does not fall within the Brady

proscription of evidence suppression. See, ¢. g., United

States v. Cole, 449 F.2d 194, 198 (8th Cir. 1971), cert.

denied, Woodard y. United States, 405 U.S. 931, 92

S.Ct. 987, 30 L.Ed.2d 806 (1972); United States vy.

Moore, 439 F.2d 1107, 1108 (6th Cir. 1971); United

States v. Evanchik, 413 F.2d 950, 952-953 (2d Cir.

1969); United States v. Jordan, 399 F.2d 610 (2nd

Cir.), cert. denied, 393 U.S. 1005, 89 S.Ct. 496, 21

L.Ed.2d 469 (1968). Furthermore, the failure to pro-

duce the photographs pursuant to the discovery order

of the state court, even if error as a state procedural

matter, does not rise to a constitutional level. See, e.9.,

Woodward v. Beto, 447 F.2d 103, 105 (5th Cir.), cert.

denied, 404 U.S. 957, 92 S.Ct. 325, 30 L.Ed.2d 275

(1971).

[11] The other prong of defendant’s argument is not

subject to review in a federal court because it has

never been presented to a state court. The argument is

that with these photographs and the new opinions of

the expert defense witnesses, it now appears that the

defendant is armed with evidence that no crime was

ever committed. This is in the nature of newly dis-

covered evidence. The point has not been presented to

the state court, so that it cannot properly be reviewed

by a federal court at this time. To the extent that the

district court judgment may have passed upon this

question, it is modified. Cf. Ross v. State of Texas,

474 F.2d 1150 (5th Cir.), cert. denied, 414 U.S. 850,

94 S.Ct. 141, 38 L.Ed.2d 98 (1973).

Affirmed.

SERRE LLIN LIEN ALOE LO OS BOE TE EL ELD ILENE ESTED Le URIS

BLEED THROUGH

FLEET IPG

-

le

APPENDIX E

Appellant’s Statement of December 27, 1970

They were sitting facing each other, holding hands.

She looked straight at Mr. Biddy, and said “Ted, I am

sorry I did it.’’ She said ‘“Ted, I didn’t mean to do it.”’

And she broke down. She stopped what she was going to

say.

Then she continued and went through the story about

what she said had taken place. She said that on this

particular night, December the 2nd, Mona had gotten

ahold of Liquid Plumr, at about seven:thirty, and drank

some out in the storeroom, and it made her violently ill.

It made her vomit.

She tried to feed her, and she couldn’t eat. She called

the doctor and asked him what to do, and he said that

if her mouth was not burned, and turning kind of white,

that she was not seriously hurt, and to give her some-

thing to settle her stomach.

She said then Mona went to bed at about eight:

thirty. She went to bed in the room with Lee Ann, which

is Mrs. Biddy’s daughter, and Mr. Biddy’s stepdaugh-

ter. Usually one of the little boys sleeps in this room, but

for some reason they changed, and Lee Ann was to

occupy the room with Mona.

She said that Mr. Biddy went to bed shortly after

that, and she stayed up and watched television with her

son Rocky, who is ten or eleven years old. He was

studying, and she was watching T. V.

Around ten, I believe, Rocky went to bed, and at ten:

thirty, she said, she started to go to bed, and she said

she went by Mona’s room to look in on her. She said she

found her—she said ‘scooted down the bed’, with the

2e

bed clothing wrapped around her head.

She said she unwrapped the bed clothing and couldn’t

get any response from Mona. She said this frightened

her, and she picked Mona up and took her out to the

den, and laid her down on the couch. She said she just

flopped down.

She said she started to call Ted, but she was afraid

that people would think that she had something to do

with it; that she had realized she was dead, and she was

afraid to call Ted, she said.

She started to call a doctor, and she just decided to

get rid of the body, and take the body so they wouldn’t

blame her with it. She carried her out and put her in her

ear and drove to the reservoir.

She drove to a particular spot near the Lakeview

Marina, because she and Ted had spent a lot of time out

there in the past. She said she put the body down near

the bank, kissed it on the forehead, and left it there so

it would be found, and then she came back home.

She said the next day, the next morning, she got up

and fixed breakfast. She asked her children to wake up

everybody. She said one of the boys—I’m not sure

which one—Jimmy, I believe, went into the room—in

fact I know it was Jimmy.

He went into the room, because that’s where he

usually slept, to get his clothing, and he told her that

Mona was not in the room, and at that time, she said,

she looked and saw the door to the carport partly open

from the kitchen to the carport, or the den, and she

notified Ted, and they began an immediate search for

Mona.

That’s the story she told us at that time.

4 BLEED THROUGH

me

3e

Q. Let me first ask you one other question: Who was

present during the time she was talking to you?

A. Lieutenant Price, myself, and Mr. Biddy.

mri cen The ViIiChw

if

APPENDIX F

Defendant’s Statement of December 28, 1970

Q. All right. The next day, December the 28th— :

A. The next day, December the 28th, Lieutenant Price

and I, and Naney McAleer from the Juvenile De-

partment went up to the jail to talk to Mrs. Biddy,

and asked her did she still want to go out and show

us where she took the body of Mona.

She said she would. We went downstairs to our car,

and as we were getting into the car, I said ‘Mrs.

Biddy, you don’t have to go it you don’t want to.’

She said ‘I want to go.’

We got in the car and drove out Highway 55 North,

toward Canton, turned in the direction of the reser-

voir, but just before we got on the reservoir road

that goes over the dam, Lieutenant Price was

driving.

He said, ‘now, Mrs. Biddy, we want you to tell us

every turn to take. We are not going to turn in any

direction, unless you direct us to.’ From that point

on, she told us where to go.

We went on across the dam to a blacktop road that

turned to the left. She said, turn here. We went up

and she told us to turn in a gravel road. We turned

in there and after getting in this particular section,

she said ‘that dceesn’t look like the place’.

I said ‘all right, tell us where to go.’ She directed us

to turn around, and we came back out, went back

north on this blacktop road, until we came to the

Lakeview Marina road. We turned in there, went

on around.by the old Captain’s Table, the place

that had been a fish house, a place to eat, and had

burned some months before. She stopped us at this

point, said ‘this looks like the place’. We got out

and walked down to the water’s edge, and she said

‘this is the place’. At this particular spot there was

an eight-foot moon-shaped cutout in the bank.

EI NG IT IG ED

rer ¢

2f

I'll hand you State’s Exhibit ‘18-t’. I want you to

look at this and tell us what this is.

Yes sir, this is it. This is the spot.

Show to the jury what you’re talking about.

(Witness does as requested.) This cutout is the

point, the spot she pointed out, right here. (Indi-

cating.) This cutout right here is about eight feet

across, and it’s about a five-foot drop. She pointed

to this spot, and said ‘this is where I brought Mona’.

She kissed her on the forehead and laid her down.

We asked her ‘in which direction did you place the

head’, she said—she pointed in the direction of the

east, which would be on the picture this way. (In-

dicating.) She identified this place as being the spot

she took the body to.

She became a little emotional, and we took her back

to the office, and waited with her a few minutes,

and Mr. Poole, and Mr. Biddy, I believe, and some

other member of the family arrived, and we turned

her over to them.

Q. And this place on State’s Exhibit ‘18-t’ is the same

oY

>

- OP

place where the body was found?

. Yes sir. This is the exact spot.

. All right. How many miles is it from the defendant’s

home on Lynnwood Lane to the point where this

body was found?

. Of the two principal roads, the principal ways to go,

one way it’s thirteen five-tenths miles, and the other

way it’s thirteen three-tenths miles.

Approximately thirteen miles?

Yes sir.

All right. After you all came back then what hap-

pened, if anything?

Mr. Poole, we let him have a conference with Mrs.

Biddy, and after he was finished, she was placed

back in jail.

BLEED THROUGH

Seed

Supreme Court of the United States

OCTOBER TERM 1975

No. 75-1006

CAROLEE BIDDY,

Petizioner,

vs.

FRED DIAMOND, SHERIFF, JACKSON COUNTY

JAIL, and JACK REED, WARDEN OF THE

MISSISSIPPI STATE PENITENTIARY,

Respondents.

Petition ror Wait or CrertTiorari To THE UNITED

States Court or AppEaLs ror THE Firrn Ciacurr

BRIEF IN OPPOSITION

A. F. Sumer

Attorney General

By: Karen Grroy

and

Toate Hancock

E. L. Mendenhall, Tnc., 926 Cherry St., Kansas City, Mo. 64106, 816-421-3090

TABLE OF CONTENTS

COPEIUIUIINS TRETAIW nw ccc ccc cece cas snececcs 1

SIE 60065 650056006666 a nese eeneanwes 2

STATEMENT OF THE CASE .................. 2

STATEMENT OF THE FACTS ................. 3

ARGUMENT:

Whether Appellant Knowingly Waived Her Right

to Remain Silent and Her Right to the Pres-

ence of Her Attorney When She, After Twice

Executing Waivers and Then Requested Her

Attorney, Stated That She Understood Her

Rights and Gave a Statement ................ 4

ss cnt bss eeabkb Uden Neeeenneee nes 38

re 38

TABLE OF AUTHORITIES

Archer v. United States, 393 F.2d 124 (5 Cir.

MEY Nis bw iid vy ud bad Wan en aa ee ab ven bh ea hte 31

Biddy v. State, 277 So.2d 115 (Miss. 1973) ....... 1,2

Biddy v. Diamond, 516 F.2d 118 (5 Cir. July

DE UG ceLREREREAS CAA 5 KR ER aAa a GOR A ew OS Maks 1,3

Biddy v. Mississippi, 414 U.S. 866, 38 L.Ed.2d

EE ah asa ss whe OK RRL CME Obes aa 3

Biddy v. Mississippi, 414 U.S. 1087, 38 L.Ed.2d

ssc LA WAU KGR CAS eKRe REAR ead 3

Boulden v. Holman, 394 U.S. 478, 22 L.Ed.2d 433,

Fe ey ere rrr tr Tro ree 34

Brown v. State, 252 A.2d 272, 275 (Md. 1969) .... 7

Clewis v. Texas, 386 U.S. 707, 18 L.Ed.2d 423,

se ee rr 34

Commonwealth v. Barclay, 240 A.2d 839 (Pa. App.

BL Cia nha k ad RNA E NE CORK eka kek CAKE CRIA SO 32

I

Coughlan v. United States, 391 F.2d 371 (9 Cir.

SE Cue ach Rew a ANSE AG RAK CEASE wR ORE K KA 11

Darwin vy. Connecticut, 391 U.S. 346, 20 L.Ed.2d

I CE eg a ay ak wie witetawe 34

Dillon vy. United States, 391 F.2d 433 (10 Cir.

1968), cert. den. 393 U.S. 889, 89 S.Ct. 208, 21

EE «ins cveavG thes cs chess hae ke beens 14, 34

Frazier v. Cupp, 394 U.S. 731, 22 L.Ed.2d 684, 89

SS EE, GV cca vac k hag bake heed anne ess 34

Gorman v. United States, 380 F.2d 158, 164 (1 Cir.

BEY Ci xdek aes CR VNea Gd cUte wee ee eee hehe eek ae 5, 6

Greenwald v. Wisconsin, 390 U.S. 519, 20 L.Ed.2d

oe fe FY oe ar 34

Hicks v. United States, 382 F.2d 158 (D.C. Cir.

ER ARES OR pas Behera ee ON ry Pree 30

Jennings v. United States, 391 F.2d 512, 515 (5

Cir. 1968), cert. den. 393 U.S. 868, 21 L.Ed.2d

ee ee ns ee ED, Na Nc AWKAS bed sGaea aan des 33

Jones v. State, 234 A.2d 900 (Md. App. 1967) .... 32

Jordan v. United States, 421 F.2d 493 (9 Cir. 1970) 19

Maguire v. United States, 396 F.2d 492 (9 Cir.

1968), cert. den. 393 U.S. 1099 (1969) .......... 7, 33

McFadden v. State, 231 A.2d 910 (Md. App. 1967) 32

Menendez v. United States, 393 F.2d 312 (5 Cir.

1968), cert. den. 393 U.S. 1029, 89 S.Ct. 639,

i. Lee heh te wee chee hae kaka 29

Miller v. United States, 396 F.2d 492 (8 Cir.

EN OS ac kn Gs a ea eae & hk RAK Oe A A ee ke 5, 33

Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d

694, 86 S.Ct. 1602 (1966) ...... 4, 5, 6, 7, 8, 9, 10, 13,

aw hae o 15, 16, 21, 22, 28, 29, 30, 32, 33, 34, 35, 36, 37

People v. Allen, 281 N.Y.S.2d 602 (N.Y. App.

Ds Rae seecudEea or necsavatse dn cater sens se Os 32

BLEED THROUGH

_~

—

Ill

People v. Butterfield, 65 Cal. Rptr. 876 (Cal. App.

Ae Re re rn Tey ae Ty

People v. Hill, 39 Il.2d 125, 233 N.E.2d 367 (1968)

People v. Schenk, 24 Cal. App.3d 233, 101 Cal.

iG I, oon nd ccd seus Css cineca

People v. Sunday, 79 Cal. Rptr. 752 at 756 (Cal.

SS PEVET UTE LETTE Cee Cre ere

State v. Davis, 157 N.W.2d 907 (Iowa 1968) ......

State v. Gallagher, 36 Ohio App.2d 29, 301 N.E.2d

Oe: ey cree ord er) eee

State v. Gray, 150 S.E.2d 1 (N.C. 1966) ..........

State v. Magee, 52 N.J. 352, 245 A.2d 339 (1968)

State v. Noriega, 433 P.2d 281 (Ariz. App. 1967)

State v. Rowe, 468 P.2d 100 (Wash. 1970) ........

State v. Teliez, 431 P.2d 691 (Ariz. App. 1967)

Stout v. State, 426 S.W.2d 800 (Ark. 1968) .......

Tucker v. United States, 375 F.2d 365 (8 Cir.

1967), cert. den. 389 U.S. 888 (1967) ...........

United States v. Anthony, 474 F.2d 470, 473 (5

Re ey bere a © haere ee pyre a na

United States v. Appell, 259 F.Supp. 156 (D. Mass.

DE ign ca ka sek oh eRe ae Lee Es

United States v. Brown, 459 F.2d 319 (5 Cir.

1971), cert. den. 409 U.S. 864, 93 S.Ct. 155,

ee 8 Bs | eR ee ee rrr aye

United States v. Carolla, 507 F.2d 50 (1975), cert.

a 9 Sree eee

m8 GE fF rrr errr err

United States v. Daulton, 488 F.2d 524 (5 Cir.

RRR Pane EUS Ptashne cod ry pened Gy eye <r By Ne |

United States v. Dority, 487 F.2d 846 (6 Cir. 1973)

United States v. Grady, 423 F.2d 1091 (5 Cir.

RRP ES eter e ny Ge SEEN pay iy ee ee