Opposition Brief — Reeves v. Texas

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In The

Supreme Court of the United States

October Term, 1998

Questions Presented

l. Is the fact that a defendant refused a request from

a police officer to allow a search of his residence admissi-

ble as evidence to support an inference of his guilt in the

contemporaneous murder of his wife, who also resided

there?

2. If such evidence should have been excluded, did

the Texas Court of Appeals correctly determire its admis-

sion was harmless beyond a reasonable doubt under the

record of this case?

RESPONDENT’S BRIEF IN OPPOSITION

TO THE HONORABLE SUPREME COURT OF THI

UNITED STATES:

he State of Texas opposes the request tiled by Jack

Wayne Reeves for review of the decision of the Texas

Court of Appeals because he was afforded due process

Petitioner’s statement regarding the nature of the case

and course of the proceedings is accepted as essentially

correct.

ARGUMENTS SUPPORTING DENIAL OF THE WRIT

A. The evidence was admissible

The Texas Court of Appeals held the fact that Reeves

had refused to permit the Arlington police to enter his

home on the evening of October 12, 1994 (about 24 hours

after his wife had disappeared) was not admissible into

evidence. The court reasoned that the only relevant pur

pose of this evidence would be as inferring Reeves’ guilt

that he was hiding something important. The court

viewed this use of the evidence as being improperly

derived from Reeves’ lawful act of invoking the protec-

tion afforded by the Fourth Amendment or as a form of

coerced relinquishment of his right to keep his home

secure from unreasonable searches. !

| Cf. South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74

L.Ed.2d 748 (1983) (it embodies no compulsion to accept an

alternative which a government cannot demand)

Yet, just as Reeves had the right to deny inspection of

his house, the police were entitled to ask for permission

to search. His response to such entreaty was not illegally

obtained, though it may be argued the police were

exploiting their lack of legal authority to enter the house

inless consent were obtained.* Although acknowledging

Keeves’ refusal to give consent may have been a circum-

stance indicating guilty knowledge or conduct on his

part,“ the court thought it was just as likely that he was

merely demanding the police first obtain a warrant. The

court determined it would therefore be unfair to permit

the jury to draw any adverse inference and further held

admission of this evidence would in effect impose a pen-

alty for exercising a constitutional right.

[his theory may be traced to Griffin v. California, 380

U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). There, a

majority of this Court first ruled that allowing any com-

ment upon a defendant's failure to testify at his trial

vould impermissibly undermine or lessen the protection

afforded by the Fifth Amendment. This rationale was

To the extent it has been held the exclusionary rule

applies only where the evidence is gained through state action,

it must be noted the same evidence was offered from another

source. R. VI-94. See also Murray v. United States, 487 U.S. 533,

108 S.Ct. 2529, 101 L.Ed.2d 472 (1988) (taint of constitutional

violation may be attenuated where same evidence is later

obtained independently through activities untainted by the

earlier illegality).

* Justice Stewart described use of this type of evidence as

an attempt by the State to recognize and articulate what it

believes to be the natural probative force of certain facts” and

“to shape a legal process designed to ascertain the truth”. Griffin

ilifornia, 380 U.S. at 622

ra

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extended in Miranda v. Arizona, 384 U.S. 436, 468 n. 37, 86

S.Ct. 1602, 16 L.Ed.2d 694 (1966) to apply to an arrested

suspect's pre-trial refusal to supply information shown to

be within his knowledge. Even in the Fifth Amendment

context, however, one’s silence when not in custody may

later be used against him. Jenkins v. Anderson, 447 U.S.

231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980).

Assuming exclusion of evidence of pre-trial silence

represents a good policy under the Fifth Amendment, it is

more difficult to say Reeves’ actions or statements on

October 12, 1994 were protected from use under the

Fourth Amendment. That provision prohibits use of the

fruits of an unreasonable search. But merely asking for

permission to search is not a search, nor is it unreason-

able. Nor did Reeves offer any evidence in support of his

claim that there was an innocent purpose (or constitu-

tional basis) for his denial of the officer’s request. See

Doyle v. Ohio, 426 U.S. 610, 619 fn. 19, 96 S.Ct. 2240, 49

L.Ed.2d 91 (1976).

The situation is thus more akin to that addressed in

Fletcher v. Weir, 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d

490 (1982). There the court held that in the absence of a

Miranda warning it would not be assumed the suspect

was exercising a constitutional right, and thus the State

could prove and comment upon the defendant’s silence at

a time an innocent person would have spoken.

More importantly, the relevance of the evidence here

was not the implication that something incriminatory

would have been found inside the house. Rather, the

State merely sought to show the first part of a pattern of

deceitful and suspicious conduct by Reeves. The State

was entitled to show that, trom the start, Reeves did not

react in a normal way with respect to the disappearance

ot his wife. This was also a “fair response” to the implica-

tions defense counsel sought to rely upon. See United

States v. Robinson, 485 U.S. 25, 32, 108 S.Ct. 864, 99 L.Ed.2d

23 (1988). The facts here are easily distinguished from

those presented in United States v. Prescott, 581 F.2d 1343

(9th Cir. 1978).

B. The admission of the evidence was not harmful

error

In any event, the Court of Appeals did not mis-

construe or misapply the doctrine of harmless error. It

correctly concluded that in the setting of this case the

error Was “so unimportant and insignificant” it did not

require reversal of the conviction. See Chapman v. Califor-

nia, 386 U.S. 18, 22, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967);

Sullivan v. Loutsiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124

L.Ed.2d 182 (1993). Since the admission of this evidence

was trial error, a qualitative assessment of its impact “in

the context of the other evidence presented” was called

tor. Arizona v. Fulminante, 499 U.S. 279, 307-8, 111 S.Ct.

1246, 113 L.Ed.2d 302 (1991).

“This Court’s review .. . is discretionary and

depends on numerous factors other than the perceived

correctness of the judgment [it is] asked to review.” Ross

v. Moffitt, 417 U.S. 600, 616-7, 94 S.Ct. 2437, 41 L.Ed.2d 341

(1974). The mere fact this Court might have hesitated to

draw the same conclusion as made below should not lead

it to overrule the conscientious decision of the Court of

Appeals upon what must be a fairly doubtful point. Mil

waukee Electric R. & Light Co. v. Wisconsin ex rel. Mil

waukee, 252 U.S. 100, 103, 40 S.Ct. 306, 64 L.Ed. 476 (1920).

The State of Texas would hope that this Court is “not

prepared to differ” with this aspect of the decision below

See Chambers v. Maroney, 399 U.S. 42, 53, 90 S.Ct. 1975, 26

L.Ed.2d 419 (1970).

CONCLUSION

While this case presents an interesting issue which

may some day need to be decided by this Court, the

fexas Court of Appeals meticulously reviewed the facts

and applied correct legal standards in determining there

was no harmful error under the record here. Review

should thus be denied. In any event, the judgment of the

lower courts must be affirmed.

Respectfully submitted,

District Attorney for the

220th Judicial District of Texas

MaArtTIN L. PETERSON

Assistant District Attorney

Counsel of Record

P. O. Box 368

Meridian, Texas 76665

(254) 435-2993

Telecopier: (254) 435-2952

Attorney for Respondent