Opposition Brief — Alabama v. Johnson

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AUG 10 1993

OFFICE OF THE CLERK

NO. 93-69

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

STATE OF ALABAMA,

Petitioner,

Vv.

RICKEY LEE JOHNSON,

Respondent.

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ON PETITION FOR WRIT OF CERTIORARI TO THE ALABAMA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

Kevin Martin Doyle*

Bryan A. Stevenson

158 Lucerne Boulevard

Birmingham, Alabama 35209

(205) 879-1035

Attorneys for Mr. Johnson

*Counsel of Record

* =

TABLE OF CONTENTS

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EMAL MULUGL LUNs 6 8806s eeeeeeseee eoeerenereeneteeeeeeeeee esoeeeerteteeeneeee#eee##ee#e?#*# . a

REASONS WHY THE PETITION SHOULD BE DENIED...... eee eeeecceeceee 4

-. BY FAILING TO FILE ITS PETITION IN A TIMELY

FASHION, THE STATE OF ALABAMA HAS FORGONE

REVIEW BY THIS COURT, PURSUANT TO 28 U.S.C.§

2101(d) AND SUPREME COURT RULE 13. ........ 4

II. NEITHER THE DECISION NOR THE RECORD BELOW

RAISES THE QUESTIONS PRESENTED IN _ THE

PUSSEeus ¢ 2 © 6&8 6 8 © © © & 6 © & & 8 8 we 6 ee 5

The Thirty-Page Statement, Played

Unedited For The Jury, Went Beyond

Any Semblance Of Mere Impeachment.

III. THE PETITIONER’S THREE QUESTIONS PRESENTED DO

NOT, ON FACE, MERIT CERTIORARI REVIEW. ...... 14

IV. THE SUMMARY REVERSAL THE STATE OF ALABAMA

DESIRES WOULD BE WHOLLY UNJUSTIFIED. ....... 15

ee Pr eee eee ye ee ee ee ee ee 18

Boag_v. MacDougall, 454 U.S.

Bradford v. Whitley, 953 F.2d 1008 (5th Cir.

brown Transportation Corp. v.—Atcon, 439 U.S.

[aG7ep 3k t acess

Harris v. New York, 401 U.S. 222 (1971) ..

Jackson v. Denno, 378 U.S. 368 (1964) ...

Lego v. Twomey, 404 U.S. 477 (1972) ....

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

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

Ohio v. Huertas, 498 U.S. , 111 S. Ct.

Ei. MM. 26 O37 (2981) «2 ew tw tt

Oregon v. Hass, 420 U.S. 714 (1975) ....

Pinto v. Pierce, 389 U.S. 31 (1967) ....

Schact v. United States, 398 U.S. 58 (1970)

w v sen, 450 U.S. 785 (1981) . .

TABLE OF AUTHORITIES

FEDERAL CASES

364 (1982) ..

United States vy. Cervantes, 542 F.2d 773 (9th Cir.

United States v. Havens,

United States v. Rada-Solano, 625 F.2d 577 (5th

1021 (1980)

1976)

Cit.)

1992)

. > . . . . > . . > . .

446 U.S. 620 (1980)

cert. denied, 449 U.S.

Ww ’

975 F.2d 1357 (8th Cir.

STATE CASES

State v. Cartwright, 650 P.2d 758 (Mont. 1982) .

Felder v. State, 470 So. 2d 1321 (Al.Cr.App. 1984),

aff’d, 470 So. 2d 1330 (Ala. 1985), vacated on

other grounds, 474 U.S. 976 (1985) * 6

Jones v. State, 584 So. 2d 917 (Al.Cr.App.),

“cert. denied, 584 So. 2d 917 (Ala. 1991) ..

People v. Maerling, 474 N.E.2d 231 (N.Y. 1984) .

Perkins v. State, 574 So. 2d 988 (Ala.Cr.App.1990),

cert. denied, 574 So. 2d 988 (1991) ...

Ex parte Watts, 471 So. 2d 505 (Ala. 1985)...

Wilson v. State, 551 So. 2d 447 (Ala.Cr.App.),

cert. denied, 551 So. 2d_447, McElroy’s

Alabama Evidence (4th ed. 1991 .....

Wypsinger v. State, 448 So. 2d 435 (Al.Cr.App

1983), cert. denied, 448 So. 2d 435 (Ala.

1984) 7 = . 7. . . eo . . . .* . > . . . . 7.

STATUTES AND RULES

38 U.8.C. § 2202(@) . « «© s we we we wo we we we we

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Sup. in R. 29 e e a . . . . > 7. . . * . . ad . .

iii

No. 93-69

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

STATE OF ALABAMA,

Petitioner,

Vv.

RICKEY LEE JOHNSON,

Respondent.

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ON PETITION FOR WRIT OF CERTIORARI TO THE ALABAMA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

COMES NOW RICKEY LEE JOHNSON, who respectfully files the

following opposition to the State of Alabama’s Petition for a Writ

of Certiorari to the Supreme Court of Alabama (hereinafter

“Petition”).

A. INTRODUCTION AND SUMMARY OF ARGUMENT

On August 11, 1989, Rickey Lee Johnson was found guilty of

capital robbery-murder in Jefferson County, Alabama. On November

20, 1989, the trial court sentenced Mr. Johnson to die in the

electric chair.

Roughly three years later, in January, 1993, the Alabama

Supreme Court, reversed and remanded Mr. Johnson’s case for a new

trial. Without a single dissent, the court held a violation of

Miranda v. Arizona had rendered Mr. Johnson’s trial fatally infirn.

Ex parte Rickey Lee Johnson, No. 1910945, slip op., (Alabama

Supreme Court Jan. 15, 1993).

The State of Alabama has now petitioned this Court for a

writ of certiorari. (I) The State’s petition, however, was filed

out of time.

Untimeliness aside, (II) neither the challenged state court

decision, Ex parte Rickey Lee Johnson, nor any part of the record

below supports even one of the Petitioner’s three questions

presented for review (hereinafter questions presented).

More specifically, each question presented rests on the

notion that the Alabama Supreme Court’s application of Miranda v.

Arizona was to a post-arrest statement used only to impeach the

defendant’s testimony. This is simply not so.

True, Mr. Johnson’s statement came into evidence only after

the defense had rested. Despite the timing of its admission,

however, the post-arrest statement, running roughly thirty pages

and heard in toto, was in no way confined to mere prior

inconsistencies. Furthermore, no jury instruction limited the

statement’s use to determining defendant credibility. Last, the

prosecution, during its cross-examination of Mr. Johnson, had

neglected even to lay the full foundation for impeachment with

extrinsic evidence.

Even if the Petitioner’s questions presented had some

factual grounding, moreover, (III) there exist no “special or

important reasons” for certiorari review. The Petitioner,

essentially, seeks to enlist this Court to correct what, granting

the Petitioner’s interpretation of Ex parte Rickey Lee Johnson,

would still be an insignificant aberration in Alabama case law.

Finally, (IV) nothing permits the summary reversal the

Petitioner proposes for the legally sound decision rendered by the

Alabama Supreme Court. Indeed, even had the Alabama Supreme Court

been passing on the admissibility of a statement admitted for mere

impeachment, the court’s result, viz. reversal, would still have

been correct. For even a statement allowed only to impeach must

be voluntary at its core. Mr. Johnson’s request for a hearing on

such voluntariness, however, was never honored. The statement

admitted, therefore, remained presumptively involuntary. This

provides yet another reason why certiorari review should not be

granted, but, even more, makes summary reversal unthinkable.

I. BY FAILING TO FILE ITS PETITION IN A TIMELY

FASHION, THE STATE OF ALABAMA HAS FORGONE

REVIEW BY THIS COURT, PURSUANT TO 28 U.S.C. §

2101(d) AND SUPREME COURT RULE 13.

A petitioner for a writ of certiorari, to be timely, must

file his petition within ninety days (90) after the date of

judgment or, where applicable, within ninety days (90) after denial

of rehearing by the court to whom the writ would be directed. 28

U.S.C. §§ 2101(d) (1988); Sup. Ct. R. 13.

The Alabama Supreme Court overruled the Petitioner’s

Application For Rehearing on April 9, 1993. The Petition, however,

did not arrive in this Court until July 12, 1993, ninety-four (94)

days after the Alabama Supreme Court denied rehearing.

Reliance on Supreme Court Rule 29.2’s provision for date of

mailing as date of service will not assist the Petitioner,

furthermore. The Petition was postmarked July 9, 1993. As a date

of filing, July 9 would still constitute the ninety-first day after

denial of rehearing below.

Last, Respondent is unaware of any enlargement granted, or

even sought by, the Petitioner pursuant to Supreme Court Rule 30.

Likewise, Respondent is unaware of Petitioner having either

proffered any good cause for its lapse or shown why the “ends of

justice” demand the lapse be overlooked. Schact v. United States,

398 U.S. 58, 63-64 (1970).

II. NEITHER THE DECISION NOR THE RECORD BELOW

RAISES THE QUESTIONS PRESENTED IN THE PETITION.

The Alabama Supreme Court’s decision made no mention of

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

used simply to impeach. It did not even hint at abandonment of

the constitutional doctrine grounded in Harris v. New York, 401

U.S. 222 (1971), and Oregon v. Hass, 420 U.S 714 (1975). In fact,

it failed even to cite those cases or their progeny. Ex parte

Rickey Lee Johnson, slip op. at 1-11.

That failure did not, as suggested by the Petitioner’s

questions presented, constitute a “direct conflict with the federal

constitutional principles announced by this Court”, a “conflict

with the decisions of the United States Courts of Appeal...and

other state courts”, or a “demonstrated hostility toward this

[United States Supreme] Court’s supremacy”. Petition at i-iii.

It reflected instead that, at trial, Mr. Johnson’s statement was

not used for the limited, impeachment purposes contemplated by

Harris and Hass; it reflected that the prosecution was, in

essence, allowed to fatten its case-in-chief during its outa

case and to do so with a lengthy non-Mirandized statement.

All this the record makes clear in three ways.

It is true the prosecution put Mr. Johnson’s statement into

evidence after Mr. Johnson testified. It is also true the

prosecution had cross-examined Mr. Johnson about four brief and

minor points where his post-arrest statement purportedly

contradicted his trial testimony. This did not, however, justify

the wholesale introduction of a lengthy, unedited post-arrest

statement under the guise of impeachment.

Those portions of Mr. Johnson’s cross-examination during

which he was supposedly impeached added up to no more than three

pages of trial testimony. (R. 1043 (lines 5-20); 1045 (lines 11-

23); 1046 (lines 1-4); 1071 (lines 12-21); 1076 (lines 19-23); 1077

(lines 1-6)) Even more to the point, those specific post-arrest

comments constituting the purported basis for this impeachment came

to less than a page and a quarter when played into the trial

record. (R. 1100 (lines 7-14); 1099 (lines 20-23); 1089 (lines 6-

14); 1096 (lines 16-23)) Additionally, each was contained in the

typed police transcript of Mr. Johnson’s statement, a transcript

which a police official swore to be “true and accurate”. (R. 1084)

Still, the state did not, in its so-called rebuttal case,

put into evidence the one or two pages worth of relevant, i.e.,

allegedly inconsistent, police transcript. The state did not even

select out, and then play, only the pertinent portions of the tape

recording.

Rather, the prosecution -- with the full leave of the court

and despite defense exception (R. 1084) -- played for the jury the

whole tape, beginning to end, almost thirty pages long (R. 1085-

1114), unabridged and unedited. Thus the jury heard not just those

few post-arrest remarks that supposedly conflicted with Mr.

Johnson’s trial testimony; it also heard a devastating collection

of comments wholly unrelated to impeachment and flowing directly

from Mr. Johnson’s own tape-recorded lips into the state’s case-

in-chief:

By dint of his recorded statement, for example, the jury

heard Mr. Johnson say that, prior to arrest, he had confessed to

a friend that "I got myself into a little trouble”. (R. 1090)

At the same time, the jury heard Mr. Johnson tell how his

own cousin had, upon hearing he was under suspicion, asked,

"Rickey, what you done now”. (R. 1088) The jury also heard Mr.

Johnson describe how his cousins had themselves believed “I burnt

that old lady house”. (R. 1088)

And the jury no doubt paid special attention when Mr.

Johnson, who at the beginning of the tape had been identified by

three different alias, assented to the assertion of his

interrogator (a Sergeant Boissel) that “the police have been

looking for you to talk to you about this, and you are also aware

of a felony warrant on yourself”. (R. 1085; 1108; underscoring

added)

The Alabama Supreme Court very correctly recognized the

particular harmfulness of these, among other, comments unrelated

to any impeachment of defendant’s testimony. Ex parte Rickey Lee

Johnson, slip op. at 6-7.

The trial court’s ruling treated Mr. Johnson’s exercise of

his right to testify -- with its possibility of impeachment -- as

a constructive waiver of his rights under Miranda whereby a

statement totally inadmissible, except to impeach, became

admissible in total. Warrant for this does not exist in case law.

See, e.g., Harris, 401 U.S. 222, 223 (1971) (wherein impeachment

allowed but court noted full “statement was not shown to the

jury”); Bradford v. Whitley, 953 F.2d 1008 (5th Cir. 1992) (wherein

the court identified as pivotal that the state had not put the full

statement into evidence: "“[T]}he key point is that it was

[defendant], and not the prosecution, that offered the confession

into evidence. Under these circumstances Harris[v. New York], and

not Edwards[v.Arizona], is decisive”); United States v. Rowley, 975

F.2d 1357, 1361-62 (8th Cir. 1992) (wherein impeachment allowed but

with only one discrete remark in defendant’s statement); See

le)

Perkins v. State, 574 So.2d 988, 991 n.2 (Ala.Cr.App.1990), cert.

denied, 574 So.2d 988 (1991) (wherein court affirms impeachment use

of statement but notes that whole of statement put in evidence only

at request of defendant) ; a Vv wri , 650 P.2da 758, 761-

763 (Mont. 1982) (wherein initially “various portions” of

defendant’s statement were used for impeachment and only “at

request of the defense” was the entire statement eventually played

for the jury).

B. The Jury Considered Johnson's Thirty-Page

Statement For All, Not Just Impeachment,

Purposes.

Not once did the jurors receive any kind of limiting

instruction concerning Mr. Johnson’s post-arrest statement (the

last piece of guilt phase evidence they were to hear). They,

specifically, heard no interim directive or pre-deliberation charge

to consider Mr. Johnson’s statement exclusively for the purposes

of impeachment.

In fact, the trial court’s instructions on witness

evaluation omitted any reference to prior inconsistent statements;

the trial court, rather, repeatedly and affirmatively mandated the

jury to consider “all the evidence”. (R. 1199; 1195-96; 1201;

1218-20;1225-26)

This instructional omission by the trial court further

undercuts the Petitioner’s theory that Mr. Johnson won relief in

silent contravention of the Harris-Hass exception to Miranda. See,

e.g., Harris, 401 U.S. 222, 223 (noting the trial court’s

instruction that impeachment evidence not to be considered directly

on guilt issue); Hass, 420 U.S 714, 717 (noting jury charge that:

“‘you may consider that [impeachment] testimony only as it bears

on the (credibility) of the Defendant as a witness’”); United

Ss Vv vens, 446 U.S 620, 623 (1980) (affirming conviction

where “jury...instructed that the [illegally obtained] rebuttal

evidence should be considered only for impeach[{ment]”); United

States v. Rada-Solano, 625 F.2d 577, 578-79 (5th Cir.), cert.

denied, 449 U.S. 1021 (1980) (wherein the district court,

addressing defendant’s statement, gave an “appropriate limiting

instruction”); United States v. Cervantes, 542 F.2d 773, 777 (9th

Cir. 1976) (wherein the district court informed the jury: "Now I

admitted [defendant’s statement] for the purpose of impeachment.”) ;

People v. Maerling, 474 N.E. 2d 231, 232-33 (N.Y. 1984) (wherein

the trial court “instructed the jury that [defendant’s statement]

was to be considered only on the issue of defendant’s

credibility”).

Se ° e a

ecessa oundatio ° m e wit

Extrinsic Evidence Of Prio consistent

Statements.

There is yet a final reason why the Alabama Supreme Court

refused to treat Mr. Johnson’s post-arrest statement as subject to

the Harris-Hass exception. The prosecution, in each of the four

purported instances of impeachment, failed to lay properly the

required foundation for introduction of extrinsic evidence.

Ve ld tae

Qne: Over a series of questions to Mr. Johnson, the

prosecution attempted to show, in part through the post-arrest

statement, that Mr. Johnson had leapt from an apartment window not,

as he testified, because he feared harm from his companions but

because he thought they had called the police. (R. 1039-44)

Read in full, however, the post-arrest statement supported

Mr. Johnson’s in-court testimony. It reflected that Johnson

"thought at first” the police had been called. (R. 1100) But it

also showed Johnson had ultimately left through the window only

because his companions were about to attack him. (R. 1101-02)

There were no contradictions, no “conflicting statements”, and thus

no good faith bases on which to introduce extrinsic evidence of the

prior statement. Harris, 401 U.S at 223. See also Wypsinger v.

State, 448 So.2d 435, 438 (Al.Cr.App 1983), cert. denied, 448 So.2d

435 (Ala. 1984); McElroy’s Alabama Evidence (4th ed. 1991),

§155.02(7).

Two: The state next took to impeaching Mr. Johnson over

whether a pistol he sought to buy, between the time of the crime

and his arrest, was priced at twenty or forty dollars. (R. 1045-

46) Only a material fact, however, is a proper area for

impeachment under Alabama law. See Wilson v. State, 551 So.2d 447

(Ala.Cr.App.), cert. denied, 551 So.2d 447 (Ala. 1989) (rape

victim’s prior statement that she “socialized” with defendant was

immaterial and thus inadmissible for impeachment). Mc ‘s

Alabama Evidence (4th ed. 1991), §156.01(1).

It is certain any evidence about a firearm purchase was

inadmissible as evidence of uncharged crimes and prior bad acts

illicitly reflecting on character. And it is beyond certain that

whether the gun’s price was to be twenty or forty dollars was

immaterial, irrelevant and thus not within the allowable scope for

impeachment.’

Three: On the same basis of immateriality, the state’s

attempt to impeach Mr. Johnson about his specifically thinking of

the electric chair, prior to arrest, was improper. (R. 1069-72)

Johnson was asked on cross “Did you think about what kind of

possible punishments there were for that crime?” (R. 1070) Mr.

Johnson replied: “I’m no dummy...I know what a capital murder is”.

A moment before he had conceded: “I was scared of what they said

I had done”. (R. 1070)

Whether Johnson had, further, envisioned Alabama’s precise

mechanism for execution was inconsequential. It surely provided

no excuse for injecting an otherwise inadmissible thirty-page

* Further, whether trial counsel made materiality objections

is unclear because the record does not contain transcription of the

side-bar conferences. See, e.g., R. 1042. Even if counsel did not

law, no waiver concerning the erroneous introduction of extrinsic

evidence of those immaterial matters. McElroy’s Alabama Evidence,

(4th ed. 1991) § 156.01(1)n.3. Additionally, Alabama applies a

plain error rule to its capital cases. Alabama Rule of Appellate

Procedure 45A.

statement into the record.

Additionally, discounting the materiality problem, this

impeachment was rendered improper by the prosecutor’s flat refusal

-- "I don’t want to hear what you told him” -- to allow Mr. Johnson

to explain how he had “told Sergeant Boissel something similar to

that”. (R. 1072) This refusal left unclear whether Mr. Johnson

was, as required, substantially denying having made the statement

in question. Ex parte Watts, 471 So.2d 505, 506-7 (Ala. 1985)

(holding Hass did not undo the requirement for a predicate denial

of the prior inconsistent statement).

Finally and likewise, when the state attempted to impeach

Mr. Johnson on a question of changed clothing, his ambiguous

response to his prior statement was: “That is a lie”. (R. 1076-

77) Did this mean Mr. Johnson was claiming the particular prior

comment was a lie on his part? Or that the state’s suggestion that

he had made the post-arrest comment was a lie? Because the trial

court disallowed Mr. Johnson’s attempt to clarify,* it never became

clear. Thus the proper predicate for the introduction of extrinsic

evidence was not satisfied.

2 Mr. Johnson asked: “May I say something?” The trial court

stated: “No, sir. You can step down”. (R. 1077) This constituted,

additionally, an infringement on Mr. Johnson’s right to testify,

due process and a fair trial. Ex parte Watts, 471 So.2d at

507("Fairness requires that the witness whose credibility is being

attacked be given an opportunity to explain the seeming

inconsistencies”.).

In sum, neither the prosecution nor the trial court treated

Mr. Johnson’s statement as simply a fulcrum from which to leverage

impeachment; neither displayed any reliance on the Harris-Hass

exception. Accordingly, the Alabama Supreme Court had no reason

to imagine such reliance where the record belied it.’

III. THE PETITIONER’S THREE QUESTIONS PRESENTED DO

NOT, ON FACE, MERIT CERTIORARI REVIEW.

Put aside that Petitioner’s three questions presented have

little, or nothing, to do with the record considered or the

decision rendered by the Alabama Supreme Court. There still

remains here a startling lack of “special and important reasons”

for granting review on a writ of certiorari. Sup. Ct. Rule 10.

At best, the Petitioner is claiming that the Alabama Supreme

Court made a mistake, that, by ignoring Harris and Hass, the

appellate court ‘got it wrong’. The Supreme Court of the United

States, however, “is not a forum for the correction of errors.”

Boag _v. MacDougall, 454 U.S. 364, 368 (1982) (Rehnquist, J.,

dissenting).

Ordinarily, certiorari must be reserved for “conflict among

> Petitioner vaguely suggests that Respondent, when before

the Alabama Court of Criminal Appeals and the Alabama Supreme

Court, conceded that Mr. Johnson’s post-arrest statement was

admitted only for rebuttal. Petition at 8. The briefs filed in the

Alabama appellate courts contradict this assertion: Brief Of The

Appellant Johnson, Petitioner Johnson’s Brief In Support of

Petition For A Writ Of Certiorari, Petitioner Johnson’s Reply And

Supplemental Brief.

jurisdictions over an issue which ‘imperatively demand[s] a single

uniform rule’ [and therefore) commands the Court’s immediate

attention.” Brown Transportation Corp. v. Atcon, 439 U.S 1014,

1015 (1978) (citation omitted; emphasis added) (White & Blackmun,

JJ., dissenting from denial of certiorari).

No such compelling conflict is even claimed here.

Last, Petitioner contends that Ex parte Rickey Lee Johnson

demonstrates open and inevitably contagious “hostility toward this

Court’s supremacy.” As a sign of this danger, the Petitioner notes

that The Alabama Lawyer synopsized Ex parte Rickey Lee Johnson

eight weeks after its issuance. Petition at 30-33. As revealed

in the Petitioner’s own appendix, though, The Alabama Lawyer did

not interpret the decision as a rejection of Hass or Harris but as

a somewhat routine enforcement of Miranda in a case where a

defendant’s statement was presumably considered for all purposes.

Appendix to the Petition at 21-23.

IV. THE SUMMARY REVERSAL THE STATE OF ALABAMA

DESIRES WOULD BE WHOLLY UNJUSTIFIED.

The Petitioner, apparently relying on Supreme Court Rule 16,

asks that the Alabama Supreme Court be summarily reversed.

Petition at 30-36. Such dispositions, though, are “rare

disposition[s] usually reserved by this Court for situations in

which the law is settled and stable, the facts are not in dispute,

and the decision below is clearly in error”. chweiker v. Ha .

450 U.S. 785, 791 (1981) (Marshall & Brennan, JJ., dissenting).

Plainly, Mr. Johnson’s case does not present such a

situation. As shown in Argument II, Mr. Johnson’s post-arrest

statement did far more than simply impeach the defendant. The

Petitioner thus premises his claim of state court error on a wholly

untenable and private interpretation of Ex parte Rickey Lee Johnson

as trampling on the rule of Harris and Hass.

But even if Mr. Johnson’s post-arrest statement had served

only to impeach, thus making Harris and Hass applicable, reversal

would still have been due under state and federal law. To qualify

for admission under Harris and Hass, a statement can defy Miranda

requirements but must be, at its core, voluntary. Michigan v.

Harvey, 494 U.S. 344, 351 (1990). Mr. Johnson was entitled, as

requested (R. 001390), to a hearing on voluntariness. Jackson v.

Denno, 378 U.S. 368 (1964).

Indeed, by the law of Alabama at least, he was entitled to

precisely the hearing outside the presence of the jury which his

pre-trial motion explicitly contemplated. (R. 001390) elder v.

State, 470 So.2d 1321, 1326 (Al.Cr.App. 1984), aff’d, 470 So.2d

1330 (Ala. 1985), vacated on other grounds, 474 U.S 976 (1985)

(defendant so requesting entitled to a hearing on statement

voluntariness outside jury’s presence). See also Jones v. State,

584 So.2d 917, 919 (Al.Cr.App.), cert. denied, 584 So.2d 917 (Ala.

1991). Cf. Pinto v. Pierce, 389 U.S. 31 (1967) (upholding

conviction where trial court held voluntariness hearing in presence

of jury but emphasizing defense counsel’s consent to such

procedure).

The opportunity for any hearing was never afforded Mr.

Johnson amidst the ‘slap-dash’ injection of his thirty-page

statement into the record. (R. 1078-895) He was then doubly

deprived. Though “entitled to a reliable and clearcut

determination [whether] the [statement] was in fact voluntarily

rendered”, Lego v. Twomey, 404 U.S. 477, 479 (1972), Mr. Johnson

received no such finding. Though entitled to have “*the

prosecution...prove by at least a preponderance of the evidence

that the confession was voluntary”, id., Mr. Johnson had no such

showing.

Reversal in the Alabama Supreme Court was inevitable under

either a Miranda or Harris-Hass analysis. This weighs against

S. Ct. , 112 L. Ed. 2d 837 (1991) (declining to review

continuing viability of Booth v. Maryland, 482 U.S 496 (1987)).

Even more clearly, it precludes this Honorable Court’s summarily

reversing to achieve a wrong result.

CONCLUSION

Wherefore, Mr. Johnson respectfully suggests that it would

be improvident to grant certiorari in this case.

Respectfully sybmitted,

ay Nin }

hf 44 —

Kevin\Martin/ Doyle*