# Petition for Writ of Certiorari — Alabama v. Johnson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1993
- **Citation:** 510 U.S. 905

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1142%3A1. Public record. Not legal advice.