Reply Brief — Clemons v. Missouri

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No. 97-484 _ OCT 21 1997

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CLERK

—

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

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REGINALD CLEMONS,

Petitioner,

VY —

STATE OF MISSOURI,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF MISSOURI

PETITIONER’S REPLY BRIEF

JAMES J. HAGAN

Counsel of Record

SIMPSON THACHER & BARTLETT

(a partnership which includes

professional corporations)

425 Lexington Avenue

New York, New York 10017-3954

(212) 455-2000

Attorneys for Reginald Clemons

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ........................ ili

POINT I. RESPONDENT’S ARGUMENT THAT

“NO, SIR” DOES NOT MEAN “NO,

SIR” IS MERITLESS, INCONSISTENT

WITH THIS COURT’S PRIOR

RULINGS, AND DEPRIVES FIFTH

AMENDMENT PROTECTIONS OF

ALL MEANING ................ ae

POINT II. | RESPONDENT IGNORES THE CLEAR

RECORD IN THIS CASE WHICH

ESTABLISHES BEYOND DISPUTE

THAT VENIREPERSON DOSS COULD

HAVE APPLIED THE DEATH

ME odor ga wale el Ga, nso 4 so og 2

POINT III. _THE DOUBLE-COUNTING OF AN

AGGRAVATING FACTOR WAS

CONSTITUTIONAL ERROR UNDER

MISSOURI’S “WEIGHING”

SENTENCING SCHEME............. . 4

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A. At Most, Respondent’s Brief Raises a

Constitutional Issue That This Court Has Yet To

Address: What Standard of Review Applies to

“SOS POS kk vb avstedasoeseres 5

B. The Lack of a Standard of Review for

“Hybrid” Jurisdictions Has Caused Confusion

and Unconstitutionally Inconsistent

Applications of the Death Penalty ............ 6

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TABLE OF AUTHORITIES

Cases

Clemons v. Mississippi, 494 U.S. 738 (1990)

Page(s)

Davis v. Executive Dir. of Dep't of Corrections,

100 F.3d 750 (10th Cir. 1996)..........

Flamer v. Delaware, 68 F.3d 736 (3d Cir.

1994), cert. denied, 116 S. Ct. 807

0 A a

Loving v. United States, 41 M.J. 212

(U.S. Armed Forces 1994) ............

Michigan v. Mosley, 423 U.S. 96 (1975) ..

Miranda v. Arizona, 384 U.S. 436 (1966) . .

Oregon v. Bradshaw, 462 U.S. 1039 (1983)

People v. Todd, 607 N.E.2d 1189 (Ill. 1993) . .

Schneider v. Delo, 890 F. Supp. 791

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iv Page(s)

Stringer v. Black, 503 U.S, 222 (1992)................. 4

Wainwright v. Witt, 469 U.S. 412 (1985) ............... 3

Zant v. Stephens, 462 U.S. 862 (1983) ................ 4-7

Statutes

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Mo. Rev. Stat. § 565.030(4)(4) ...............0.. 5

DEO. Rev. Sit, § SESGIGS) weeks cesses 4

Other Authorities

Marcia A. Udder, Note, Hanging Life

in the Balance: The Supreme Court

and the Metaphor of Weighing in the

Realty Phase of the Capital Trial,

Oe Se ae SU Be RO ic oe bea ee heuedeivesea®s 7

Stephen Hombuckle, Note, Capital

Sentencing Procedure: A Lethal Oddity in

the Supreme Court's Case Law, 73

Be ar OE e's os ooo Kw he aks oo ewe eS 4

POINT I.

RESPONDENT’S ARGUMENT THAT “NO, SIR” DOES

NOT MEAN “NO, SIR” IS MERITLESS,

INCONSISTENT WITH THIS COURT’S PRIOR

RULINGS, AND DEPRIVES FIFTH AMENDMENT

PROTECTIONS OF ALL MEANING

Respondent acknowledges that “if an individual unequivocally

indicates that he wishes to remain silent, ‘interrogation’ must

cease.” Resp’t Br. at 4. Yet petitioner’s “no, sir’ in response to the

question of whether he wished to make a Statement could not have

been more unequivocal. The police were therefore obligated to

honor petitioner’s request by immediately ceasing the interrogation

for a “significant” period of time. See Michigan v. Mosley, 423 U.S.

96, 106 (1975).

Respondent’s effort to justify the continued questioning of

petitioner is directly at odds with the rulings of this Court. First.

respondent argues that “indecisive” defendants are not entitled to

constitutional protections. Resp’t Br. at 4. But such a contention

cannot be reconciled with this Court’s rulings in Miranda y.

Arizona, 384 U.S. 436, 473 (1966), that a defendant can invoke his

rights “in any manner, at any time prior to or during questioning,”

and in Mos/ey that a defendant’s right to terminate questioning must

be scrupulously honored. 423 U.S. at 106.'

Respondent’s argument ultimately proves too much. If a

defendant does not immediately assert the right to remain silent. by

1. Respondent cites inapposite Missouri precedents for the proposition that

the police may continue an inquiry where the defendant’s response was

unclear on its face. Here, however, because petitioner’s words could not

have presented a clearer articulation of his desire to remain silent,

“clarification” was neither necessary nor permissible. Moreover,

respondent's reliance on petitioner’s subsequent statements to validate

its violation of his rights is an “untenable” post hoc rationalization.

Smith v. Illinois, 469 U.S. 91, 97 (1984).

respondent’s logic, the police can always construe a subsequent

invocation as ambiguous, concluding after the fact that “he simply

misspoke.” Resp’t Br. at 5. The purpose of this Court’s prophylactic

rule, however, was not to widen police discretion, but to rein it in

to prevent precisely the type of abuse that occurred here. See

Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983).

POINT II.

RESPONDENT IGNORES THE CLEAR RECORD IN

THIS CASE WHICH ESTABLISHES BEYOND DISPUTE

THAT VENIREPERSON DOSS COULD HAVE APPLIED

THE DEATH PENALTY

Respondent contends that the trial court’s sua sponte striking

of death-scrupled venireperson Virto Doss was “within its

discretion.” Resp’t Br. at 9. But respondent avoids quoting the

record in this case which demonstrates beyond peradventure that

Doss could have applied the death penalty in appropriate

circumstances despite his initial reluctance.’ The trial court made

no findings as to Doss’s credibility, but rather relied on

“recollection” and “notes” in striking Doss for cause when no

motion to strike was pending. App. at 147a. The tnal court’s

ty

Respondent's recitation of the facts is completely flawed. For instance,

respondent wrongly asserts that petitioner did not preserve the argument

for appeal, Resp’t Br. at 8, when the record makes clear that a timely

objection was made. See App. at 147a ("Judge . . . I asked him if he

could follow the instructions, and he understood the difference between

the two. He certainly did."), 148a ("[W]e make objection to all of these

strikes of course, all of these strikes."). Similarly, respondent errs in

stating that Doss “did not say” whether he could sentence an accomplice

to death. In fact, Doss explicitly and repeatedly stated that he could vote

for the death penalty even if the evidence showed that petitioner himself

did not kill the victims. App. at 133a.

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unwarranted action violated petitioner’s rights under the Sixth

Amendment.

On this record, no reasonable person could conceivably be left

with the “definite impression” that Doss “would be unable to

faithfully and impartially” apply the law. Wainwright v. Witt, 469

U.S. 412, 429 (1985). After his initial qualms about the death

penalty, Doss—on six separate occasions—stated without

equivocation or elaboration that he could apply the death penalty.

See App. at 131a (“Not after you present me with the facts, I can’’),

132a (“No.”), 133a (“Yes.”), 133a (“Yes.”), 139a (“Yes.”), 140a

(“Yes.”). Continued questioning by both sides left no doubt that,

despite his scruples, Doss was willing to vote for the death penalty

under appropriate circumstances. Even the State did not move to

strike Doss for cause, lending further credence to the notion that

Doss was a qualified, suitable juror. The trial judge’s subsequent

“recollection” regarding Doss’s statements was simply erroneous.

App. at 147a.

The most cursory examination of the transcript of Doss’s voir

dire, see App. at 130a-140a, reveals that he is precisely the type of

juror to whom the logic of Gray v. Mississippi, 481 U.S. 648

(1987) and Wainwright v. Witt, 469 U.S. 412 (1985), applies. If the

groundless striking of venireperson Doss did not violate petitioner’s

rights under the Sixth Amendment, it is difficult, if not impossible,

to imagine a potential juror to whom this Court’s ruling in Gray

and Wainwright might apply. Respondent’s meritless argument

would render this Court’s Sixth Amendment jurisprudence utterly

meaningless.

POINT III.

THE DOUBLE-COUNTING OF AN AGGRAVATING

FACTOR WAS CONSTITUTIONAL ERROR UNDER

MISSOURI’S “WEIGHING” SENTENCING SCHEME

Missouri is a “weighing” jurisdiction, because the “weighing”

process is integral to its death penalty statute. See Pet’r Br. at 27-

28. The Missouri statute explicitly requires juries to determine

whether the mitigating evidence is “sufficient to outweigh the

evidence in aggravation.” Mo. Rev. Stat. § 565.030(4)(3). Thus,

several courts—including the Missouri Supreme Court—have held

that Missouri is properly considered a “weighing” jurisdiction. See,

e.g., Schneider v. Delo, 890 F. Supp. 791, 827 n.11 (E.D. Mo.

1995); State v. Whitfield, 837 S.W.2d 503, 511-12 (Mo. bane 1992):

see also Stephen Hombuckle, Note, Capital Sentencing Procedure:

A Lethal Oddity in the Supreme Court’s Case Law, 73 Tex. L. Rev.

441, 462 (1994).

PER

Because Missouri is a weighing jurisdiction, the presence of an

invalid aggravating circumstance—in this Case one that was double-

counted—means that petitioner’s death sentence cannot stand unless

the error is independently found to be “harmless.” See Clemons v.

Mississippi, 494 U.S. 738, 750-52 ( 1990).

3. Whether a jurisdiction is deemed to employ a “weighing” or a “non-

weighing” scheme is, as this Court has recognized, a determination of

“critical importance.” Stringer v. Black, 503 US. 222, 231 (1992).

Erroneous aggravating factors must be reviewed for harmless error in

“weighing” jurisdictions because it is impossible to determine whether

an improper aggravating factor "skew([s]" the jury’s calculations. Jd.: see

also Clemons, 494 U.S. at 750-52. Under non-weighing schemes, no

such harmless error review is required. See Zant v. Stephens, 462 U.S.

862, 870 (1983).

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A. At Most, Respondent’s Brief Raises a

Constitutional Issue That This Court Has Yet

To Address: What Standard of Review Applies

to “Hybrid” Jurisdictions?

Respondent cites without analysis separate authority in support

of its contention that Missouri’s capital sentencing scheme should

be considered “non-weighing,” see Resp’t Br. at 11-12, but does

not, and cannot, contest that Missouri’s statute directs juries to

weigh mitigating evidence against aggravating evidence.

Instead, respondent raises only the obvious fact that, after

weighing mitigating factors, a jury in Missouri retains discretion not

to impose the death penalty. See Mo. Rev. Stat. § 565.030(4)(4).

Although the mere presence of such a “non-weighing” element does

not alter the fact that weighing is required, respondent’s argument

in its best light suggests that Missouri could be characterized as a

“hybrid” jurisdiction. If respondent’s argument has any merit at ail.

it presents a new question which may be stated as follows:

Whether a capital sentencing scheme which

combines elements of both “weighing” and “non-

weighing” statutes (i.e., a “hybrid” scheme) is

governed by the harmless error analysis set forth in

Clemons v. Mississippi, 494 U.S. 738 (1990), or the

lesser standard of Zant v. Stephens, 462 U.S. 862

(1983)?

This Court has “never. . . explicitly answered the question [of]

whether Clemons or Zant control when a death sentence is imposed

under what is best described as a ‘hybrid’ scheme—one which

consists of both weighing’ and "non-weighing’ characteristics.”

Flamer v. Delaware, 68 F.3d 736. 769 (3d Cir. 1994) (Lewis, J..

dissenting), cert. denied, 116 S. Ct 807 (1996): see also Davis v.

Executive Dir. of Dep't of Corrections, 100 F .3d 750, 767 (10th

Cir. 1996). To the extent that Missouri may be considered a

“hybrid” state, petitioner respectfully requests that the Court grant

the petition to settle the question of how the Eighth Amendment

applies in such jurisdictions.

B. The Lack of a Standard of Review for

“Hybrid” Jurisdictions Has Caused Confusion

and Unconstitutionally Inconsistent Applications

of the Death Penalty

Left without this Court’s guidance, the jurisdictions that have

“hybrid” sentencing schemes differ greatly about what standard of

review applies, causing unconstitutionally arbitrary and inconsistent

application of the death penalty.

At least three other jurisdictions employ Capital sentencing

schemes that contain both “weighing” and “non-weighing”

elements: Colorado;* (ii) Jilinois:’ and (iti) U.S. Armed Forces ®

These jurisdictions disagree as to whether the introduction of an

improper aggravating factor is reviewed under Clemons or Zant.

Colorado’s hybrid scheme, for example, which admittedly

contains both weighing and non-weighing elements, is reviewed

under the “weighing” standard set forth in Clemons. See Davis. 100

F.3d at 766. Similarly, the U.S. Armed Forces has applied Clemons

4. See CR.S.A. §§ 16-11-103(2)a)(I) and (Ill); Davis, 100 F.3d at 766

(characterizing Colorado’s scheme as “hybrid”.

5. See People v. Todd, 607 N.E.2d 1189, 1197 (Ill. 1993) (applying the f

Zant “non-weighing” standard of review despite presence of statutory

weighing factors).

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6. See Loving v. United States, 41 M.J. 212, 248 (U.S. Armed Forces 1994)

(noting that “Rule for Courts-Martial” (“RCM”) 1004 is a “hybrid”

scheme).

to its hybrid sentencing scheme. See Loving, 41 M.J. at 248.

Illinois, however, which also has weighing and non-weighing

elements, has applied the standard of review in Zant. See Todd, 607

N.E.3d at 1197. If Missouri can be considered a “hybrid” state, the

ruling of the court below suggests that it disagrees with Colorado

and the U.S. Armed Forces as to what standard of review applies.

These inconsistencies among jurisdictions can result in

similarly situated defendants receiving the most widely disparate

treatment possible: some have their sentences overturned while

others are put to death. See generally Marcia A. Udder, Note,

Hanging Life in the Balance: The Supreme Court and the Metaphor

of Weighing in the Penalty Phase of the Capital Trial, 68 Tul. L.

Rev. 1341 (1994). Capital punishment dispensed in this manner is

inherently “arbitrary and capricious,” and, therefore, violates the

Eighth Amendment. Gregg v. Georgia, 428 U.S. 153, 195 (1976).

If Missouri is deemed a “hybrid” jurisdiction, this Court should

grant the petition to resolve the sharp disputes among different

jurisdictions as to how the Eighth Amendment applies under these

circumstances.

CONCLUSION

For the foregoing reasons, and the reasons set forth in the

petition, petitioner respectfully requests that this Court grant his

petition for a writ of certiorari.

October 21, 1997

Respectfully submitted.

/s/ JAMES J. HAGAN

JAMES J. HAGAN

Counsel of Record

Edward D. Johnson

Glenn S. Leon

Jeffrey A. Simes

SIMPSON THACHER & BARTLETT

(a partnership which includes

professional corporations)

425 Lexington Avenue

New York, New York 10017-3954

(212) 455-2000

Attorneys for Reginald Clemons