Petition for Writ of Certiorari — Alabama v. Johnson

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93-69 :

NO.

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1992

STATE OF ALABAMA,

Petitioner,

Vv.

RICKEY LEE JOHNSON,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

PETITION OF THE STATE OF ALABAMA

*Counsel Of Record

JAMES H. EVANS

ALABAMA ATTORNEY GENERAL

MELISSA G. MATH*

DEPUTY ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL

ALABAMA STATE HOUSE

11 SOUTH UNION STREET

MONTGOMERY, ALABAMA 36130

(205) 242-7300

ATTORNEYS FOR PETITIONER

QUESTIONS PRESENTED

a

Whether this Court should grant

certiorari and summarily reverse the

decision of the Alabama Supreme Court,

which is in direct conflict with the

federal constitutional principles

announced by this Court that require only

proof of voluntariness when a defendant's

Statement is introduced by the prosecution

solely to impeach the defendant's

credibility?

Il.

Whether this Court should grant

certiorari and summarily reverse the

decision of the Alabama Supreme Court on a

question of federal law, holding that

proof of full compliance with Miranda v.

Arizona, 384 U.S. 436 (1966) is required

when the prosecution offers the

defendant's statement for purposes of

impeachment, because this decision is in

conflict with decisions of the United

States Courts of Appeal and with decisions

of other state courts of last resort on

this federal question?

III.

Whether this Court should grant

certiorari and summarily reverse the

decision of the Alabama Supreme Court

because in ignoring this Court's prior

rulings on this Constitutional issue, the

Alabama Supreme Court demonstrated

hostility toward this Court's supremacy

and has now positioned Miranda v. Arizona

as a barrier to the admission of voluntary

statements for impeachment purposes in all

trials in Alabama?

ii

PARTIES

The caption contains the names of all

parties to the proceedings in the courts below.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED... ... 2. ccc ccccveces i

PARTIES. .cccccccccscccccccescccececes £33

TABLE OF CONTENTS... ccccscccccccccvece iv

TABLE OF AUTHORITIES... cecccccves vi

OPINION BELOW... . cece ccc ccescccccves 1

JURISDICTION... . ccc ccccccrvccccccccece 2

CONSTITUTIONAL PROVISIONS INVOLVED... 2

STATEMENT OF THE CASE......ccccceccces 1

SUMMARY OF THE ARGUMENT...........2.4--. 9

ARGUMENT... -ccccccccccccccrcccesccces 12

I. THIS COURT SHOULD GRANT

CERTIORARI AND SUMMARILY

REVERSE THE DECISION OF THE

ALABAMA SUPREME COURT,

WHICH IS IN DIRECT CONFLICT

WITH THE FEDERAL

CONSTITUTIONAL PRINCIPLES

ANNOUNCED BY THIS COURT

THAT REQUIRE ONLY PROOF OF

VOLUNTARINESS WHEN A

DEFENDANT'S STATEMENT IS

INTRODUCED BY THE PROSECUTION

SOLELY TO IMPEACH THE

DEFENDANT'S CREDIBILITY.... 12

II. THIS COURT SHOULD GRANT

CERTIORARI AND SUMMARILY

REVERSE THE DECISION OF

THE ALABAMA SUPREME COURT,

WHICH CONFLICTS WITH

NUMEROUS DECISIONS OF THE

UNITED STATES COURTS OF

APPEAL AND WITH OTHER STATE

COURTS OF LAST RESORT THAT

RECOGNIZE AND FOLLOW THE

FEDERAL CONSTITUTIONAL

PRINCIPLES ANNOUNCED BY

THIS COURT AND HOLD THAT

ONLY PROOF OF VOLUNTARINESS

IS REQUIRED WHEN THE

PROSECUTION INTRODUCES A

DEFENDANT'S STATEMENT

SOLELY FOR PURPOSES OF

IMPEACHMENT...... co ccccccecs 19

III. THIS COURT SHOULD GRANT

CERTIORARI AND SUMMARILY

REVERSE THE DECISION OF THE

ALABAMA SUPREME COURT

BECAUSE IN IGNORING THIS

COURT'S PRIOR RULINGS ON

THIS FEDERAL QUESTION, THE

ALABAMA SUPREME COURT HAS

DEMONSTRATED HOSTILITY

TOWARD THIS COURT'S

SUPREMACY AND HAS NOW

POSITIONED MIRANDA V.

ARIZONA AS A BARRIER TO THE

ADMISSION OF VOLUNTARY

STATEMENTS FOR IMPEACHMENT

PURPOSES IN ALL TRIALS IN

ALABAMA... .cccccvcvcvvcvees 30

CONCLUSION........- TOCCeRRETEE See Te 36

TABLE OF AUTHORITIES

Page

Arthur v. State, 575 So.2d 1165

Ceeeeatee cs SOPO) 6 oc ct ice es ss 30

Bradford v. Whitley,

953 F.2d 1008 (5th Cir.),

cert. denied,

Bae wae OA CARRS) secs cnesess 23

Ex parte Callahan, 471 So.2d 463

oo. Se | ae ee eee 30

Cooper v. Aaron, 358 U.S. 1 (1958). 32

Delo v. Lashley, 113 S.Ct. 1222

CS Serre rT re eee ee ee ao

Delo v. Stokes, 110 §.Ct. 1880

Bo) Perr Se er ee ee ae 35

El Vocero de Puerto Rico v.

Puerto Rico,

Bee wees S008 CIPOR) 20402000 35

Florida v. Meyers, 466 U.S. 380

DE) <6 > hit o:2 b 06 6 0-44 440 ORO Ee Ja5 32

Harris v. New York, 401 U.S. 222

tg) A SeOPSSTe TTT Tee TT eee Passim

Johnson v. State, No. CR-90-109

(Ala.Cr.App. Jan. 21, 1992)... 7

vi

ee

TABLE OF AUTHORITIES (Cont. )

Page

Jones v. Murray, 947 F.2d 1106

(4th Cir. 1991),

cert. denied,

Ad BeGhs SESS CASTS) 0 a ch owe es 23

Lanari v. People, 827 P.2d 495

PCOLGs APPS) Os 06-6000 06 6s 608 6% 25, 26

Michigan v. Jackson, 475 U.S. 625

Bo err er ee rc ere eee 17, 18

Michigan v. Long, 463 U.S. 1032

PROM Ce eek rbcceebeeeeeeennane 34

Miranda v. Arizona, 384 U.S. 436

Ob freer Tee Tee Passim

Oregon v. Hass, 420 U.S. 714

6) rs) Perr ere Ce TTT eee ee aS, i6

7» Oe

ane a7

People v. Maerling, 474 N.E.2d 231

Paks SPOS) cb ccc nciancvvescers 29

Robinson v. State, 399 So.2d 902

(Ala.Cr.App. 1981)... .cscccvves 30

Smith v. Ohio, 110 S.Ct. 1288

ei) PPT reer Cee rereT Tee 35

State v. Cartwright, 650 P.2d 758

fo Se ks | ree eee ee 27, 28

vii

eT

TABLE OF AUTHORITIES (Cont. )

Page :

State v. Graham, 768 P.2d 259

to DS ree ee ee ee ee ee 29

State v. King, 320 S.E.2d 1

aes BE) bbb ba bec e eed eeees 29

State v. Slowinski,

450 N.W.2d 107 (Minn. 1990)... 29

Swicegood v. State, 277 So.2d 380

FER CE sR. EETS) coc vvsrucess 30

Thomas v. State, 370 So.2d 1066

(RAB. CE.AMD. TSTE) cc svcseseoee 30

Torres-Valencia v. United States,

SOS Usls SS CAPSS boc cscccvcecs 35

United States v. Cervantes,

see cae tra (9tm Cif. 1976)... 23

United States v. Cranson,

453 F.2d 123 (4th Cir. 1971),

cert. denied,

See Use WOU LAPIS) 6 6 6:6 bc0 es be 24

United States v. Havens,

8S ee Me aaa 16, 22

United States v. McQueen,

458 F.2d 1049 (3d Cir.),

cert. denied,

SUP Use Gar CEP ab cw ccceas ces 23

viii

a

TABLE OF AUTHORITIES (Cont. )

United States

Page

v. Phillips,

575 F.2d

United States

314 (7th Cér. 1978)... 23

v. Rada-Solano,

625 F.2d

cert.

577 (5th Cir. Fla.)

denied,

449 U.S.

United States

1021 (1980)

v. Rhodes,

886 F.2d

(D.C. Cir.

United States

af2

1989) 21

v. Romero,

692 F.2d

(10th Cir.

United States

699

1982)

6.2 8:68.64 4.02.8 8 2 2 2 @

v. Rowley,

975 F.2d

(8th Cir.

United States

1357

567 F.2d

(7th Cir.

United States

23

v. Winter, 663 F.2d 1120

(lst Cir.

460 U.S.

United States

1981), cert. denied,

1011 (1983)

21, 22

ex rel.

Wright v.

LaVallee, 471 F.2d 123

(ea Cit.

414 U.S.

1972), cert. denied,

867 (1973)

ix

TABLE OF AUTHORITIES (Cont. )

Page

Walder v. United States, 347 U.S. 62

PRPEE 6666668 b6 4S CACO SOROS DOES 9, 14

Rv6 Ae

22

Washington v. State, 432 So.2d 44

CPRe BPO Cece eseesaseescbene a

Ala. Code §13A-5-40(a)(2)(1975).. 3, 7

SS U.S.C. BASZST(A) cv cccscevsesecser 2

OPINION BELOW

The January 15, 1993 opinion of the

Alabama Supreme Court reversing Rickey Lee

Johnson's conviction (Alabama S.Ct. No.

1910945) is not yet reported. The opinion is

reproduced as Appendix A in the Appendix

volume accompanying this Petition, as is the

April 9, 1993 order of the Alabama Supreme

Court denying the State's Application for

Rehearing, as Appendix B.*

*The Appendix to this Petition is

separately bound pursuant to Rule 14.1(k).

JURISDICTION

The judgment of the Alabama Supreme Court

was issued on January 15, 1993. The

Petitioner's Application for Rehearing was

overruled on April 9, 1993. The jurisdiction

of this Court is invoked under 28 U.S.C.

§1257(a).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States

Constitution provides, in pertinent part:

No person ... shall be compelled

in any criminal case to be a

witness against himself....

The Fourteenth Amendment to the United

States Constitution provides, in pertinent

part:

No state shall ... deprive any

person of life, liberty, or

property, without due process of

BOM. ccs

STATEMENT OF THE CASE

A. Statement of the Facts

seventy-year-old Emma Whitehead was beaten

to death in her home on June 8, 1988. Ms.

Whitehead's cousin, Ruby Brown, was beaten and

robbed by the same perpetrator, later

identified to be Respondent Rickey Lee

Johnson. After beating the women and robbing

Ms. Brown, Johnson started two fires in the

house and fled the scene. Emma Whitehead

died, and Johnson was charged with robbery/

murder. Ala. Code §13A-5-40(a)(2)(1975).

Johnson gave a statement to the police

after his arrest and he completely denied any

involvement in the robbery/murder; that

statement was audiotaped by the police and it

was transcribed. (R. 1078-1114) The

prosecution did not offer the statement into

evidence in its case-in-chief.

Johnson testified in his own defense at

trial (R. 986-1000), and he denied any

involvement in the crime. On direct

examination and on cross-examination, Johnson

detailed his activities on the day the

robbery/murder took place, and he testified

about his maneuvers to avoid the police for

several days after the crime, as well as his

reasons for fleeing from the police. (R.

993-1000, 1002-1035, 1039-1053, 1064-1072)

Johnson also testified about the clothing he

wore on the day of the robbery/murder. (R.

1008, 1018, 1053-1054, 1059)

During cross-examination, Johnson

acknowledged that he previously made a

statement to the police. (R. 1074) He

explained and/or denied various portions of

the statement that conflicted with his trial

testimony about, among other things, the

clothing he wore on the day of the

robbery/murder, his attempts to evade the

police, and his reasons for fleeing (R.

1043-1046, 1071-1073, 1076-1077).

In rebuttal, the prosecution offered into

evidence the taped statement Johnson gave to

the police after he was arrested, that

detailed his activities before and after the

robbery/murder and contained the statements

that he denied and/or explained away during

his testimony at trial. Before the tape was

admitted into evidence in rebuttal, the

prosecutor elicited the following testimony to

establish the voluntariness of Johnson's

statement:

Q. [Prosecutor] All right.

Then did you have a conversation

with Rickey Johnson?

A. [Sergeant Boissel] I did.

Oo. All right. Prior to having this

conversation with Rickey Johnson

did you read him what is commonly

known as his Miranda rights?

A. I did.

Q. And prior to having this

conversation with Rickey Johnson

did you threaten or coerce Rickey

Johnson in anyway in order to get

him to make a statement to you?

A. I did not.

Q. Did you offer him any reward or

hope of reward in order to get

him to make a statement to you?

A. No.

Q. Did you tell Mr. Johnson it would

be better for him to make a

statement or worse for him if he

did not make a statement?

A. No, I didn't.

Q. All right. Did he indicate to

you that he wished at that time

to make a statement?

A. He did.

Q. All right. How did he indicate

that?

A. Verbally. Said that he would

give me a statement.

(R. 1080-1081)

The sergeant testified about matters

relating to the accuracy and integrity of the

tape; the trial court admitted the tape into

evidence and it was played for the jury. (R.

1083-1114) The tape was admitted over defense

counsel's objection that the statement was

involuntary and taken in violation of

Johnson's Fifth and Fourteenth Amendment

rights. (R. 1121)

B. Proceedings Below

Johnson was indicted by a Jefferson

County, Alabama grand jury for robbery/murder,

a violation of Ala. Code §13A-5-40(a) (2)

(1975). (R. 1311-1312) Following a jury

trial, Johnson was convicted of the

robbery/murder and sentenced to death. (R.

4332-1335)

On appeal to the Alabama Court of Criminal

Appeals, Johnson argued in a footnote in his

brief that his statement was erroneously

admitted in rebuttal because it was not given

voluntarily. The Court of Criminal Appeals

affirmed Johnson's conviction and sentence.

Johnson v. State, No. CR-90-109 (Ala.Cr.App.

Jan. 21, 1992).

On certiorari in the Alabama Supreme

Court, Johnson again argued in a footnote in

his initial brief that the prosecution should

not have been permitted to introduce his

statement in rebuttal because it was not given

voluntarily. In Johnson's "Reply and

Supplemental" brief in the Alabama Supreme

Court he argued, for the first time in any

court, that his taped statement was

erroneously admitted in rebuttal because the

prosecution did not prove complete compliance

with Miranda v. Arizona.

In its decision reversing Johnson's

conviction and sentence, the Alabama Supreme

Court held that reversal for a new trial was

required for a single reason: the taped

statement was erroneously admitted because the

prosecution failed to establish the necessary

Miranda predicate. Ex parte Johnson, slip op.

at 3-6. (Appendix A, pages 5-10)

In its brief on Application for Rehearing

to the Alabama Supreme Court, the Petitioner

again argued that the Alabama Supreme Court's

decision was in conflict with prior decisions

of this Court. On April 9, 1993, the Alabama

Supreme Court overruled, without issuing an

opinion, the State's Application for

Rehearing. (Appendix B) The cause was

remanded for a new trial.

SUMMARY OF THE ARGUMENT

When the Alabama Supreme Court held that

the defendant's prior statement to the

police was erroneously admitted in the

prosecution's rebuttal case for purposes of

impeaching his trial testimony because the

prosecution had to prove not only

voluntariness but also had to prove that the

police complied with the requirements of

Miranda v. Arizona, that court decided a

federal question in direct conflict with the

established precedents of this Honorable

Court. Beginning with Walder v. United States

and Harris v. New York, this Court decided a

series of cases upholding the prosecution's

use of evidence and voluntary statements for

purposes of impeachment, even when the

evidence was inadmissible in the prosecution's

case-in-chief because it was obtained in

violation of the defendant's Constitutional

rights. The Alabama Supreme Court's decision

reversing this defendant's capital murder

conviction and death sentence on this ground

cannot be reconciled with this Court's prior

rulings.

II.

When the Alabama Supreme Court held that

the defendant's statement was erroneously

admitted in the prosecution's rebuttal case

for purposes of impeachment because the

prosecution failed to prove that the

defendant's statement was preceded by full

Miranda warnings, the Alabama Supreme Court

10

decided this federal question in conflict with

numerous decisions from the United States

Courts of Appeal and other state courts of

last resort. Those courts have followed the

prior rulings of this Court and have held that

even illegally obtained evidence may be

introduced by the prosecution in rebuttal or

cross-examination to impeach the defendant's

trial testimony.

III.

Certiorari review and a summary reversal

are warranted here. The Alabama Supreme

Court's refusal to acknowledge and follow the

consistent rulings of this Court in decisions

involving the interpretation of the United

States Constitution that clearly control this

case resulted in a deviation so extreme that

it can, and should, be corrected by a summary

reversal.

ll

ARGUMENT

THIS COURT SHOULD GRANT CERTIORARI AND

SUMMARILY REVERSE THE DECISION OF THE

ALABAMA SUPREME COURT, BECAUSE IN

HOLDING THAT PROOF OF FULL COMPLIANCE

WITH MIRANDA V. ARIZONA, 384 U.S. 436

(1966) IS REQUIRED WHEN THE PROSECUTION

OFFERS THE DEFENDANT'S STATEMENT IN

REBUTTAL AND ONLY FOR PURPOSES OF

IMPEACHMENT, THE ALABAMA SUPREME COURT

HAS DECIDED THIS FEDERAL QUESTION IN

DIRECT CONFLICT WITH THE ESTABLISHED

PRECEDENTS OF THIS COURT

The prosecution offered Johnson's

audiotaped statement in its rebuttal case

for impeachment purposes after Johnson

testified in his defense. The issuc before

the Alabama Supreme Court involved the

requirements for establishing the admissibil-

ity of that statement for impeachment

purposes. This Court resolved the issue

decades ago.

In Harris v. New York, 401 U.S. 222

(1971), this Court specifically addressed the

12

principles it discussed in Walder v. United

States, Harris v. New York, and Oregon Ve

Hass, and held that evidence obtained in

violation of a defendant's constitutional

rights may be used to impeach statements the

defendant made during cross-examination that

was reasonably suggested by the defendant's

testimony on direct examination.

More recently, this Court again declined

to disturb its decisions in the cases

discussed above, and further held that the

prosecution may use, for impeachment purposes,

a statement taken in violation of the Michigan

v. Jackson, 475 U.S. 625 (1986) rule regarding

invocation of a defendant's right to counsel.

Michigan v. Harvey, 494 U.S. 344 (1990). In

reaching this decision, this Court relied on

the principles announced beginning in Harris

v. New York that evidence obtained in

violation of a defendant's constitutional

rights must not be used by the prosecution to

17

prove its case-in-chief, but that use of such

evidence for purposes of impeachment is

permitted in order to further the ultimate

goal of searching for the truth in a criminal

case. This Court stated that it had

consistently rejected arguments that would

permit defendants to turn the prosecution's

improper methods to their own advantage by

raising them as shields against proof of the

defendants' own false statements. Michigan v.

Harvey, 494 U.S. at 351 (quoting Harris v. New

York's quotation of Walder v. United

States).

Since at least 1954 in the Walder v.

United States decision, this Court has

consistently interpreted the Constitution to

permit the prosecution to admit a variety of

evidence for purposes of impeachment, even if

the evidence is inadmissible for use in the

prosecution's case-in-chief.

18

iI.

THIS COURT SHOULD GRANT CERTIORARI

AND SUMMARILY REVERSE THE DECISION

OF THE ALABAMA SUPREME COURT, WHICH

CONFLICTS WITH NUMEROUS DECISIONS

OF THE UNITED STATES COURTS OF

APPEAL AND WITH OTHER STATE COURTS

OF LAST RESORT THAT RECOGNIZE AND

FOLLOW THE FEDERAL CONSTITUTIONAL

PRINCIPLES ANNOUNCED BY THIS COURT

AND HOLD THAT ONLY PROOF OF

VOLUNTARINESS IS REQUIRED WHEN THE

PROSECUTION INTRODUCES A

DEFENDANT'S STATEMENT SOLELY FOR

PURPOSES OF IMPEACHMENT

In accordance with this Court's series of

decisions regarding the admissibility of a

defendant's statements or other evidence for

impeachment purposes, many of which have been

discussed above, a multitude of cases in each

circuit of the United States Court of Appeals

and in other state courts of last resort have

also held that the prosecution may impeach a

defendant with voluntary statements or other

evidence, even though the evidence might not

be admissible in the prosecution's

case-in-chief. Because there are innumerable

19

federal and state cases following the

decisions of this Court, only a representative

few will be discussed below.

A. Federal Appellate Court Decisions

In United States v. Rhodes, 886 F.2d 375

(D.C. Cir. 1989), the defendant was

convicted of bank fraud, forgery, and using

a false social security number, and he claimed

on appeal that reversible error occurred when

statements he made during questioning by

police officers and a bank security officer

were admitted in the prosecution's rebuttal

case because they were made without Miranda

warnings and because the questioners had

difficulty understanding him. Observing that

in Harris v. New York, this Court held that

statements not preceded by Miranda warnings

could be used, as they were in rebuttal in

that case, ~o impeach the defendant's

credibility after he testified, the Court of

20

Appeals further noted that Harris v. New York

did not prevent the prosecution from using

Such statements even if the evidence of

perjury is thin. United States v. Rhodes, 886

F.2d at 377-378 (also citing Oregon v. Hass,

420 U.S. 714, 722 (1975)). After rejecting

the defendant's claim that the statements were

untrustworthy, the Court of Appeals held that

no error occurred in admitting the defendant's

statements in rebuttal. United States v.

Rhodes, 886 F.2d at 378.

In United States v. Winter, 663 F.2d 1120

(lst Cir. 1981), cert. denied, 460 U.§. 1011

(1983), one of the defendants in a RICO

conspiracy case claimed that he should not

have been cross-examined about a telephone

conversation intercepted by the Government

because the Government failed to comply with a

federal statute containing certain pre-trial

notice requirements. The Court of Appeals

held that "the interception, even if not

21

legally authorized, could be used for

impeachment purposes" because this Court's

precedents "firmly established that illegally

obtained evidence may be used to impeach a

defendant on cross-examination." United

States v. Winter, 663 F.2d at 1154 (citing

United States v. Havens, Oregon v. Hass,

Harris v. New York, and Walder v. United

States).

Not long after this Court decided Harris

v. New York, the petitioner in a habeas corpus

case claimed on appeal that a custodial

statement he made should not have been

introduced at trial because it had been taken

after he requested and was denied counsel.

United States ex rel. Wright v. LaVallee, 471

F.2d 123 (2d Cir. 1972), cert. denied, 414

U.S. 867 (1973). Citing Harris v. New York,

the Court of Appeals rejected the petitioner's

Claim, finding that no error occurred even if

there was a constitutional violation that

22

would have precluded use of the.statement in

the prosecution's case-in-chief because the

Statement was used only on cross-examination

to impeach the petitioner's testimony at

trial. United States ex rel. Wright v.

LaVallee, 471 F.2d at 125.2

*These cases also demonstrate that

the United States Courts of Appeal have

consistently interpreted the decisions of

this Court to permit the prosecution to use

illegally obtained evidence on

cross~examination or in rebuttal to impeach a

defendant's trial testimony and have applied

the decisions in cases on appeal: United

States v. Rowley, 975 F.2d 1357, 1361-1362

(8th Cir. 1992); Bradford v. Whitley, 953

F.2d 1008, 1009-1011 (Sth Cir.), cert.

denied, 113 S.ct. 91 (1992); Jones v. Murray,

947 F.2d 1106, 1114-1115 & n.6 (4th Cir.

1991), cert denied, 112 S.ct. 1591 (1992);

United States v. Romero, 692 F.2d 699, 705

(10th Cir. 1982); United States v.

Rada-Solano, 625 F.2d 5377, 578-579 (5th Cir.

(Fla.) cert. denied, 449 U.S. 1021 (1980);

United States v. Phillips, 575 F.2d a7,

99-100 (6th Cir. 1978); United States v.

Simmons, 567 F.2d 314, 320-321 ‘ee Bs ye

1977); United States v. Cervantes, 542 F.2d

773, 777 (9th Cir. 1976); United States v.

McQueen, 458 F.2d 1049, 1052-1053 [au Cir.)

(Footnote Continued)

23

From the foregoing brief survey of cases

from the United States Courts of Appeal, it is

clear that the Alabama Supreme Court's

decision, holding that federal Constitutional

principles rendered inadmissible for

impeachment purposes the defendant's pre-trial

statement because proof of compliance with

Miranda v. Arizona was lacking, stands in

direct conflict with the federal courts'

decisions during the past two decades in cases

involving identical circumstances. This

extraordinary conflict created by the Alabama

Supreme Court's failure to acknowledge and

apply the relevant Constitutional standards

established by this Court should be reviewed

and corrected by this Court on certiorari.

(Footnote Continued)

cert. denied, 409 U.S. 857 (1972); and United

States v. Cranson, 453 F.2d 123, 124 (4th

Cir. 1971), cert. denied, 406 U.S. 909 (1972).

24

B. Decisions of State Courts of Last Resort

Numerous courts of last resort in other

States have also decided this federal question

in accordance with the decisions of this

Court during the decades preceding the Alabama

Supreme Court's dramatic departure from those

precedents. This extraordinary conflict, too,

demonstrates the need for this Court's

certiorari review and reversal of the Alabama

Supreme Court's decision.

Last year, the Supreme Court of Colorado

reviewed a case in which the trial court

excluded the testimony of the defendant's

mental health expert, but permitted the

prosecution to cross-examine the defendant

regarding statements he made to the expert

that were inconsistent with the defendant's

trial testimony. Lanari v. People, 827 P.2d

495 (Colo. 1992). The defendant claimed that

this violated the attorney-client privilege,

25

his right to effective assistance of counsel,

and his privilege against self-incrimination.

The Colorado Supreme Court rejected the

Claims, observing that it and this Honorable

Court had repeatedly held, in various

constitutional contexts, that prosecutors may

impeach a defendant with voluntary statements

that would be inadmissible in the

prosecution's case-in-chief. Lanari v.

People, 827 P.2d at 501. That court

reiterated that the limited admissibility of

inconsistent, voluntary statements for

purposes of impeachment was based on the

concept that the search for truth in criminal

proceedings should be encouraged, that false

testimony by the defendant would subvert that

essential function, and that absent the rule

permitting the prosecution from using

voluntary statements for impeachment purposes,

there would be "no effective means

26

_OoOOooOeECOO

available to prevent the defendant from

testifying falsely." Id. (citations omitted).

A decade earlier, the Supreme Court of

Montana rejected a defendant's claim that due

to a denial of his right to counsel during a

pre-trial interview, the tape recorded

Statement he made should not have been

admitted for purposes of impeaching his

testimony at trial. State v. Cartwright, 650

P.2d 758 (Mont. 1982). Noting the "critical

distinction", that the taped statement was not

used in the prosecution's case-in-chief but

only for impeachment,*? the Supreme Court

of Montana stated that it had followed the

rule set out by this Court in Harris v. New

York and Oregon v. Hass, and that there was a

very good reason for the rule, which is to

“This "critical distinction" is

precisely the one that the Alabama Supreme

Court ignored in its decision in this case.

27

prevent the Miranda shield to allow the

defendant to commit perjury. State v.

Cartwright, 650 P.2d at 761-762. The court

declined to change this "sound rule", and held

that the trial court properly allowed the

prosecution to impeach the defendant with

portions of the taped statement. State v.

Cartwright, 650 P.2d at 762-763.

In Washington v. State, 432 So.2d 44 (Fla.

1983), the defendant appealed from his capital

murder conviction and argued that his

confession should not have been allowed into

evidence because it was obtained in violation

of his constitutional rights. Citing Harris

v. New York, the Florida Supreme Court quickly

rejected the claim and held: "The confession

was presented by the state in rebuttal after

appellant had testified in his own defense.

Therefore, it was not necessary for the state

to establish that the requirements of Miranda

..» had been followed in obtaining the

28

confession." Washington v. State, 432 So.2d

at 47. When presented with the same

circumstances in Ex parte Johnson, the Alabama

Supreme Court incorrectly determined that the

prosecution did, in fact, have to establish

that the requirements of Miranda had been

followed. In doing so, the Alabama Supreme

Court rendered a decision that places it in

Sharp conflict with numerous other state

courts of last resort.*

For this additional reason, this Court

should grant certiorari and should summarily

reverse the decision of the Alabama Supreme

Court.

“For other state cases interpreting

and applying this Court's precedents on this

issue in conflict with Ex parte Johnson, see,

€.g., State v. Slowinski, 450 N.W.2d 107,

110-111 (Minn. 1990); State v. Graham, 768

P.2d 259, 264-267 (Kan. 1989); State v. King,

320 S.E.2d 1, 7-8 (N.C. 1984); and People v.

Maerling, 474 N.E.2d 231, 232-233 (N.Y. 1984).

29

IIIf.

THIS COURT SHOULD GRANT CERTIORARI

AND SUMMARILY REVERSE THE -DECISION

OF THE ALABAMA SUPREME COURT

BECAUSE, IN IGNORING THIS COURT'S

PRIOR RULINGS ON THIS FEDERAL

QUESTION, THE ALABAMA SUPREME COURT

DEMONSTRATED HOSTILJ TY TOWARD THIS

COURT'S SUPREMACY AND HAS NOW

POSITIONED MIRANDA V. ARIZONA AS A

BARRIER TO THE ADMISSION OF

VOLUNTARY STATEMENTS FOR

IMPEACHMENT PURPOSES IN ALL TRIALS

IN ALABAMA

In reversing Johnson's conviction on

Miranda v. Arizona grounds, the Alabama

Supreme Court cited and relied on five

state cases.* None of the cases indicate

that the prosecution introduced the

defendant's statement only on

cross-examination or in rebuttal, so each of

“The cases cited are: Ex parte

Callahan, 471 So.2d 463 (Ala. 1985); Arthur

v. State, 575 So.2d 1165 (Ala.Cr.App. 1990);

Robinson v. State, 399 So.2d 902 (Ala.Cr.App.

1981); Thomas v. State, 370 So.2d 1066

(Ala.Cr.App. 1978); and Swicegood v. State,

277 So.2d 380 (Ala.Cr.App. 1973).

30

those cases discusses the established

requirements for a proper predicate under

Miranda v. Arizona, which is necessary when

the defendant's statement is admitted in the

prosecution's case-in-chief. Each of the

cases was therefore irrelevant to the facts of

the case the Alabama Supreme Court was

reviewing, because the prosecution did not

offer Johnson's statement in its

case-in-chief, but only in rebuttal after

Johnson testified. In requiring proof of

compliance with Miranda v. Arizona the Alabama

Supreme Court ignored post~-Miranda decisions

of this Court Spanning nearly two-and-a-half

decades that have consistently held that the

Prosecution must prove only the voluntariness

of the statement in these circumstances. The

radical, impermissible, and unexplained

departure from the rulings of this Court

Cannot be tolerated for at least two reasons.

31

First, the Alabama Supreme Court's refusal

to follow the rulings of this Court

necessitates action from this Court to

"vindicate the supremacy of federal law."

Florida v. Meyers, 466 U.S. 380, 383

(1984)(Stevens, J., Brennan J., and Marshall,

J., dissenting). See also Cooper v. Aaron,

358 U.S. 1, 17-19 (1958) (reviewing principles

that established that this Court's interpre-

tation of the Constitution is the supreme law

of the land). If the Alabama Supreme Court's

judgment is allowed to stand, then this

Court's prior decisions on this issue have no

meaning and the rights acquired under those

decisions will simply not exist in Alabama.

The second reason that this Court should

grant certiorari and summarily reverse the

Alabama Supreme Court's decision is that it

will erode any sense of certainty that might

have surrounded the interpretation and

application of Miranda v. Arizona and its

32

iittala neal

Progeny in Alabama. This decision will not

quickly and quietly disappear as an

unfortunate aberration in Alabama law. A

Summary of the decision was included, two

months ago, in The Alabama Lawyer, the

official publication of the Alabama State

Bar. (Appendix C) Because the decision so

restricts the admissibility of evidence by the

Prosecution, it will be cited by many defense

attorneys, and Alabama's trial and appellate

judges will be required to follow this ruling

of the Alabama Supreme Court. Thus, in future

trials in Alabama, proof that a statement was

voluntarily given will not be enough to allow

a defendant's statement into evidence as

impeachment of his Prior testimony, as Harris

v. New York has provided for Since 1971. If

the Alabama Supreme Court is free to ignore

Harris v. New York, it is reasonable to assume

a3

that other precedents of this Court are at

risk as well.®

Equally as clear as the need for this

Court's action in this case is its

jurisdiction to act. The Alabama Supreme

Court's decision rests primarily on federal

law. Michigan v. Long, 463 U.S. 1032 (1983).

That Alabama Supreme Court referred throughout

its opinion to Miranda v. Arizona, Miranda

warnings, a Miranda predicate, and to that

court's previous analysis (in a case involving

a Miranda violation where the defendant's

statement was admitted in the prosecution's

case-in-chief) of United States Supreme Court

®State of Alabama v. Tracy Monique

Caldwell, a case currently before this Court

on petition for a writ of certiorari,

demonstrates an Alabama appellate court's

previous departure from this Court's Fifth

Amendment decisions, and an expansion of the

exclusionary rules of evidence announced by

this Court with regard to Miranda v. Arizona.

34

decisions. The state cases cited in the

opinion all discuss Fifth Amendment principles

and Miranda v. Arizona as well. There being

no adequate or independent state ground, this

Court's jurisdiction cannot be questioned.

Similarly, the need and justification for

Summary disposition of this case is apparent.

This Court has Summarily disposed of cases

only occasionally and when the lower court has

ignored, misunderstood, or misapplied this

Court's prior rulings. Florida v. Meyers, 466

U.S. 380 (1984); Torres-valencia v. United

States, 464 U.S. 44 (1983). See also El

Vocero de Puerto Rico v. Puerto Rico, 113

S.Ct. 2004 (1993); Delo v. Lashley, 113 S.Ct.

1222 (1993); Smith v. Ohio, 110 S.Ct. 1288

(1990); Delo v. Stokes, 110 S.Ct. 1880

(1990) (all summarily disposing of cases).

This is precisely what occurred in the Alabama

Supreme Court. The rulings of this Court in

Harris v. New York and its progeny permit the

ao

introduction of a defendant's prior statement

for impeachment purposes without proof of a

proper Miranda predicate. The Alabama Supreme

Court's ruling requiring proof of a Miranda

predicate ignores those controlling decisions

and is clearly inconsistent with those

precedents. Summary disposition is therefore

proper here.

CONCLUSION

The Alabama Supreme Court's decision in

this case is in direct conflict with the

controlling decisions of this Court. Not

surprisingly, it conflicts with numerous

decisions from other state courts of last

resort and from the United States Courts of

Appeals, which have acknowledged and applied

this Court's decisions. The Petitioner

respectfully submits that in order to

vindicate the supremacy of this Court's

decisions on the issue of admissibility of

36

Dieters aaa

rebuttal evidence in Alabama, this Court

Should grant certiorari and Summarily reverse

the judgment of the Alabama Supreme Court.

Respectfully submitted,

JAMES H. EVANS

ALABAMA ATTORNEY GENERAL

DEPUTY ATTORNEY GENERAL

ADDRESS OF COUNSEL

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, Alabama 36130

(205) 242-7300

0227T

37

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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