Respondents Brief — Brooks v. Tennessee

Supreme Court brief1972

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AN THE

SUPREME COURT OF THE unre Ses

Fe:

No. 71-5313

~ DONALD L. BROOKS, .

Petitioner,

. .

STATE OF TENNESSEE,

Respondent. a

~~ On Writ of Certiorari to the Court of Criminal Appeals of Tennessee

5 .

- BRIEF FOR THE RESPONDENT

ROBERT -E. KENDRICK

Deputy. Attorney General,

\ State of Tennessee .

\. Supreme Court Building -

~ Nashville, Tennessee 37219

\ ~ Attorney for Respondent

St. Lonis Law Printing Co., Inc., 411-15 N. Eighth St. 63101 814-281-4477

CLE AONE OL RS LA SY POR RESas RNAS pear I NE Oe

" Opinion below

“¢ . Jurisdiction oeaweees esas eee eens aan

Constitutional and statutory’ provisions involved opt : 2

Questions presented seve evsseasess weds Lececaeeeee 4

Statement Of the ease 0.6 s cece errr TS : «

- Argument .......... eee ee Tree ee ee ee 6

I. T.C.A¥ § 40-2403 is a truth-in-testimony’ law—

a rational, logical and legitimate complement of

\the sequestration of witness rule—which the

state under ‘our federal system had the right to

adopt and apply as a ‘part of its trial pro-

.¢ cedures for the administration of its ‘criminal -

_ 2lI. Petitioner has failed to sustain his contention -

that the trial court applied T.C.A., § 40-2403 so

as. to violate his Fifth Atniendnient right to re-

main silent ...... weeatuauess iueusae ews os esd

ill. Petitioner. has’ failed to sustain his contention

that the trial court applied T.C.A., § 40-2403 so .

_as to violate his due process rights under the

Fourteenth Amendment se ded wee e sens beac es 20

~1Ve Whether or not T.C.A., § 40- 2403 as s applied by. .

(a the trial court to the petitioner in this case vio-.

| lated the Sixth Amendment is not properly be-.

fore this court: in any event there was no such

_ violation ........ Souse xs can eeuws : A reer ere 22

V. Petitioner has failed to sustain his’ contentibn .

that the trial court applied T.C.A., § 40-2403 so

as to violate his right to testify in his own be-

half or his right to be heard under Tennessee

Constitution, Article I, Section 9; this court

- . should not hold that the Tennessee statute in

question violates the Tennessee Constitution oo

COomelasion sinc. . 3308s e ec neon rides pe eteraesesss .

Cases Cited

Anderson v. _ Cammonwealth, 353 S.W.2d 381 (Ky.

OGD) a Fah one eaeetess gies eueseuceuaues

Arnold” Vv. State, 139 Tenn. 674, 202 S.W. 935 asi)

_ Baldwin v. New York, 399 U.S. 66 (1970) -...2. 203

Clemons V: State, 92 Tenn. 282, 21 S.W. 525 (1893)

Commercial Credit Equipment Corp. \ v. Kilgore,, 2 =

. §$0.2d 363 (Miss. 1969) ....... ‘Saaws Cele eaeeees

Coombs Mi Coombs, 59° D.C. App. 30, 32 F. 2d 421 (1929)

27:

"Davis v. Atlanta Coca Cola Bottling Co. 119 Ga. App.

422, 167 S.H.2d 23f (1969) ....... cn ed eexerwuen ia

Davis v. Kimberlain, 188 Ky. 147, 221 S.W. 226 (1920) ~

Ferguson v. Georgia, 365 U.S. 570 (1961) . veeahaa es ae

Garabrandt v. Boston Molasses Co., 10 P.R:Fed. 71

(1917) ....... Oe oavaresadaeasay an cadieecsesteacs 2

Glenn v. Field Packing Company, 290 U. S. 177 (1933) _

| Harvey. v. State, 468 S.W.2d. 731 (Tenn, 1971) ie eae

Highland Farms Dairy v. Agnew, 300. U.S. 608 (1937)

Horme! v. Helvering, 312 U.S. 552 (1941) .......4:.

Hughes v. State, 126, Tenn. 40, 148 S.W. 543 (1912).

* Lehman v. State Board of Public Accountancy 263

US. 394 (1928) oye. eek

ee | Ge |

Martin v. State, 157 Tenn. 383, 8 S.W.2d 479 (1928) "ge

McGautha v. California, 402 U.S. 183, 91 S.Ct.” 1454 °

NIOTEY eee caee ou cee co 4 ees eae a xe 18, 19, 21, 26

McKeiver v. Pennsylvania, 403 U. 8. 528, 91 S.Ct. 1976 ©

(1971) eee ee eee cece ceeuceeuauenuseceuaeeens 15

MeManny. Richardéon, 397 US. 759 (1970) ....... 18, 21

Morgan v. State, 86, Tenn. 472, 7 S.W. 456 (1888) .... 9

Nance v. State, 210 Tenn. 328, 358 8.W.2d 327 (1962) 12 .

Nelson v. State, 32 Tenn. 237 (1852) peri cuaesazercon 10

New ‘State Ice Co,” v. Liebmann, 285 U.S. 262 (1932) 14

Petty v. State, 72 Tenn. 326 (1880) ........ aa 20, 24:

Powell v. Alabama, 287- US. 45 (1932) ...... one ale 21

- Regina v, Smith, 52 Cr.App. Rép.- 224, CA., 132 IP.

312, 1 W.L.R. 636, 112 Sol, Jo. |231 (1968) 2 All.

E.R. 2 nr ae ead aes sens ..10-11, 12:

Rex v. Christenson, 2 Dom.L: Rep. 379 (1923) ieeesees 20

Rex v. ‘Morrison, 6 Cr. App. Rep. 159, 75 J.P. 272

aos k ne. ere (ene mere | | Me 6 |

Rex v. Richards, McDonald, and Aunger (1 a

A 9.0 0: os | eee ee er (Caer ee ane . 10

Robinson v. Commonwealth, 459 sla ‘147 (Ky. . 4 -

ea rere cigerewkeege Nev enge Mesheh ede sneta ees 8

Smartt v. State, 112 Tenn. 539, 80 S.W. 586 (1903) ~ 13

’ Sinillie v. Lerner, 10 N. J. Mise, 484, 159 Atl. 808 -

¢. (1982). -sivenes teed less aiace OB a ealsales aeroaiee tale e. ans 7

Spaulding v. United States, 279 2d 65 (9th Cire.

1960), cert. den. 364 U.S. 887 (1960) ..../......... 8

- Spencer v. State of Texas, 385 U.S. 554 (1967) ..-,..15, 22 "a

“Standard Industries, Ine. v. Tigrett Industries, Inc,

397 U.S. 586-(1970) ...... eiantiaenaehss piers ens 23°"

‘State v, Boiner, 179 Tenn. 67, 162 S.W. 2a 515 (1942) 20,24

Tift v. - Jones 52 Ga, 538 (1874) . foanes a ae ; .

iv — , / 3: -

United States v. “Shipp, 359 F.2d 185 (6th Cir. 1966), a

cert. den. 385 U.S. 903 (1966) ..-...........0-008- 8

Wilson v. State, 50 Tenin. "232 (1871) . Lispeseedieeseac® BAe’

oe Statutes Cited |

Kentucky Revised Stats. 421.225 (1962) ......0./... 8°

.. Terinessee Constitution: ta . 4

Art. I, See. 9... eee eee eee ee ecn eee +B, 5, 22, 2A, 25, 26 :

Tennessee Code Ann. (T.C.A.), Sec.. _

. 40-2403 Seep ssn aees sy ae9es <4 3, 5, 9, 10, 12, 14, 16, 17, 18

, 20, 21, 22, 23, 24, 25, 26, 27

‘United States Constitution : © \. a

, Amendment V .-......... Oveeses \ ees e es 2, 5, 10, 22

Amendment VI ............ tees \. (esyueh on cnnd Oy ae

Amendment XIV ...... case tans \ Lenede: 2,5, 10, 22

\ ek | |

\ ee ae Texts Cited

‘4 Jones, Evidence (5th Gard 1958), § 889 see eeewaaa 150

2 “Underhill, Criminal Evidence (5th Ed. Herrick =

1956), OOM ose na ates i pteene eo essekenenesssse%s 6.

3 Wharton, Criminal Evidence ( 12th Edition Ander-

= son 1955), §840 .......... none wegheckueas Parrre 6

6 Wigmore, ¢, Evidence (3rd Ea. i940), gs1837, 1838, ,

1841, 1869:" ae pia delstaubiten és) be bede oul elec 6,7

"Caruthers, History of a’ ‘Cawanit (8th Ea. — & .°

_ Aderhold 1963),\ § 330 ...... ahete a ehee el vionsy ot 14-

“Moore, “Order of Witnesses in a°Criminal Case,” 260

- Cambridge L J. 185° (1968): 2.5.2. e eee eee reoese 12°

_ Ontar io Rules of P. and P., Civ. 1947, No. 254 ree orn ae

SLRS ODES OG: ANETTA 3 et BEE Pom F oF nde ehh ° were Ye “3

IN THE

_ SUPREME COURT OF THE UNITED STATES

-No.71-5313

DONALD L. BROOKS,

Petitioner,

2. °

ov.

STATE OF TEESE, 8,

vse

On Writ of Cettiorari to the Court of Criminal Appeals of Tennessee

OS | cere |

BRIEF FOR THE RESPONDENT

‘

OPINION BELOW

fata

A correct copy of the ‘May 5, 1971, opinion and ae

ments of the Court of Criminal’ Appeals of Tenneségee, af-

" firming the onviction of the Petitioner in the First Di-

\visign of the ‘ Cireuit Court of Hamilton County, Tennessee,

of the offenses%of armed robbery and unlawfully gaa be

a pistol, is: included in the appendix,” (Appx: 6-22).

cor rect copy of .the August 16, 1971, order of the Sieome i

- Court of Tennessee denying Petitioner’s petition for writ,

of cer tiorari is abso. included in the oo (Appx. 24).

—

ial

-\ a aa } ; i

\ SS OY ‘JURISDICTION . /

The: jurisdictional requisites are adequately | set fort in

the rief of the Petitioner. Sits Br. 1-2).2.5 {

¢ 2 CONSTITUTIONAL AND ecarutcey

\/ -” *.. PROVISIONS INVOLVED? |

ws. Coiist, ‘ana V. ow

NG person shall be held to answer for. a capital, or

otherwise infamous~crime, unless on a “presentment or

\ indictment. by. a Grand Jury, except in eases arising

\ the land or naval forces, or in the Militia, when in

-act al service in the ‘time of War or public danger;

“ner shall any person. Be subject: for the same offense

‘to be twice. put in jeopardy of life or limb; ‘nor shall

- be. corpelled in ‘any criminal case to be :a’ witness

against himself, nor be deprived, of" life, liberty, or

oe property, without due process’ of law; nor shall _

Ra “private. property; be taken for publie ge, ——_ just

. conipensation.”” | ve

‘US Const., amend. XIV. et ye 5 “

“Section. ‘BL All persons born or. éabavlied in. the

United States, and subject to the. jurisdiction thereof,

are citizens of the United’ States and of: the. State

wherein they. reside, No State shall make - or enforce

aT References. to. Petitioner's. brief are to pages as. <a |

in the carbon copy of his brief*served upon Respondent Decem: —°

ber 30, 1971.. As' of the date the manuscript of Respondent’s

brief went.to the printer, January-27, 1972, Respondent had not

"received a copy of Petitioner's print brief. «|

“2 The brief of the Petitioner (Pet.” r: 2- 3), ineorrectly states,

that: Atnendment Vi- to the Constitution .of the United States is

_ involved. ‘However, this’ Court’s -Noveniber 16, 1971, order . ~

. granting the ‘petition for writ of certiorari (Appx: 28) specif--

~ ically. limits’ the grant to petition Questions. Il] and’ IV, whieh .

‘involye ‘U.S. ‘constitutional provisions only with regard to

Amendments: v and XIV.

e® : . ~

¢ od . :

. .

@. « :

any law which shall abridge the privileges or immuni-.

ties of ‘citizens of the United States; nor shall: any:

State deprive any person of life, liberty, or property,

without due. proeess of law; nor deny to. any person |

‘within its jurisdiction the equal protection of the

laws.’’

Tenn: Const., art. I,see, 9.°: 5

**Ppat in all criminal prosecutions, the accused hath

‘the right to be heard by himself and his counsel; to

demand the nature and cause of the accusation against

him, ard to:-have a copy thereof, to meet the witnesses

face to face, to have compulsory process tor obtain-_

ing witnesses in his favor, and ‘in prosecttions by in-

dietment or presentment, a speedy public tial; by an

impartial jury of the County in which the crime shali-

have been committed, and shall not be compelled to.

_- «give evidence against himself?’ - | |

Tenti, Code Amn. [T.C.A;], see. 40-2403.

«The failure of the party’ defendant to mabe sugh

request aud to testify in his own behalf, shall not.

-- create any presumption against him. But the deferid- *

3 Tennessee Constitution, Article I, Section 9, was relied upon

by the Petitioner before the Court of Criminal Appeals of Ten-

nessee, but that Court overruled his assignment of error: which

contended that the refusal of the: trial court’ because of T.C.A.

§ 40-2403 to allow him to be placed on the witness stand after

other. witnesses -had testified in his behalf violated Tennessee

Constitution, Article I, Section 9: The same assignment of error.

with regard to the same Tennessee -constitutional provision was

made to the Supreme Court of Tennessee in: a-petition for writ

‘of certiorari, but that Court held that the petition was not well

taken and denied it. . Although this Court’s order (Appx. 28)

granting the petition for writ of certiorari grants’ it as to Ques--

tion III: of the petition, which contends in part that T.C.A.

§ 40-2403 violates ‘Tennessee Constitution, Article I, Section 9, |

Respondent contends, for reasons ‘stated infra 26-27 that this

Court should not be concerned with whether the State statute

in question. violates the State constitutional provision invoked

by .Petitioner, that being a matter for the State courts whereas

this Court's jurisdiction is as to Federal questions.

Cis to testify. shall do so before any other: —

testimony. for the defense is heard by the court try

ing the case.’’ <

QUESTIONS PRESENTED ©

The questions presented, aus stated in the Court’s No-

vember 16, 1971, order granting the pane for writ of

certiorari (Appx. 28), are as follows:

‘TTI, The trial court was in error in refusing: to

allow defendant to be placed on the witness stand

after other witnesses had testified’ in his ‘behalf as

said Tennessee Statute requiring defendant to be first

witness is’ unconstitutional in- violation of the Kjfth -

- — . Amendment and Fourteenth Amendment of the Fed-

“+. eral Constitution and Article 1, Section 9 of Tennessee

Constitution.”’ ‘ |

“TV. Code section 40-2403 ee es a Hefendant of

‘due process of law, in violation of the Fourteenth

Amendment“to the United States Constitution.’’

STATEMENT OF THE CASE

- The Petitioner, Donald L. Brooks, was. tried on April

1, 1970, in the First Division of the Circuit Court of Ham-

ilton County, Pennessee, on two charges. In number

118061, the jury fotmd the Petitioner guilty of armed rob-

bery and fixed punishment at ten (10) years in the State-

Penitentiary. In number 118079, the: jury. found the Peti-

tioner guilty. of unlawfully carrying a pistol ~and. fixed

‘- punishment at.a fine of Fifty, Dollars ($50.00) and a term

of eleven ménths and twenty-nine days in the county work- .

house. Thereupon the trial judge pronounced judgment.

_ In the course of. the trial, after the State had completed

its case, counselsfor Petitioner moved the ‘court for per- |

mission to reserve the right ‘to have the. Petitioner testify |

following: certain other witnesses for the defense. The

trial court denied-the motion on the gr ouund that T.C.A.

Ce od

§ 40-2403 requires that if a defendant testifies he-must do

so before any other testimony for the. defense is heard.

(Appx. 1-3). |

After convictfon, a-motion for a new trial was filed and

was overruled by the trial court. One of ‘the’ grounds for

thé motion (ground 6) was that the court had erred in

refusing to allow the Petitioner to be placed on the wit-

| ‘ness stand after othes witnesses had testified. in his be- ,

-half, it being contended that, the ‘statute in question: is

‘‘unconstitutional’’, although no particular cofistitutional

pr Ovision was invoked. (Appx. 4-5).

‘Petitioner appealed his convictions to the Court of

Criminal ‘Appeals of Tennessee, assigning as error inter

~ alia: that the trial court had erred in refusing to, allow him

to be placed on the witness stand after other witnesses had’

testified in his behalf, and contending that T.C.A., § 40-

2403 violates the Fifth and Fourteenth Amendments of _

the United States Constitution and Article I, Section 9, of |

the Tennessee Constitution. That court on May 5, 1971,

-averruled the assignments of error’ and affirmed. Petition- .

ons-eonvictions, (Appx. 6-22). 7

Petitioner -then petitioned the Supreme Court of Ten-

nessee for writ of certiorari, again contending that T.C.A.,

’ § 40-2403 violates the Fifth and Fourteenth Amendments

to the Constitution of the United States and Article I,

Section 9, of the Tennessee Constitution. The Supreme .

-Court of Tennessee on August 16, 1971, denied the petition -

for writ of certiorari. (Appx. 24)..

Finally; Petitioner petitioned this Court fos writ of

certiorari, and this Court on November 16, 1971, granted :

the petition but limited the grant to the two questions

stated supra 4 under “Questions Presented,” chaKenging

the constitutionality of Te A., § 40-2403 under the Fifth

_ and Fourteenth ‘Amendments of the United States: Con- .

stitution and Article I, Section 9, of the Tennessee Con-

stitution. (Appx. 28). | . |

eae en acca haat Yo SPR

a= 7 . , I

- T.C.A., § 40-2403 Is a Truth-in-Testimony Law—a Ra-

tional, Logical, and Legitimate Complement of the Seques-

tration of Witness Rule—Which the State Under Our

_ Federal System Had the Right to Adopt and Apply. as a-

Part of its Trial Procedures for the Administration of Its

Criminal. Laws. ©

“At the threshold, -it is jsicabie to look at the back

ground and context in Anglo-American jurisprudence of

the rule that-a defendant if he chooses to testify must

| testify before other testimony in his behalf is heard. (For

brevity. this rule will be referred to as the, rule requiring

the defendant to testify first.)

The rule requiring the defendant to testify. first is

closely related to the process of placing prospective wit-

nesses dut of the. hearing of a testifying witness. The

latter process, known as sequestration of witnesses’ and in’

many “states simply as ‘‘the rule,’’ is remarked upon by

- Professor Wigmore as to its ‘‘age and, universality.’’ 6

Wigmore, Evidence (3d-ed. 1940), § 1837. The probative

purpose and operation.of the sequestration process is said

to consist in preventing one prospective’ witness from

‘‘being taught’? by hearing another’s testimony (/d.,

§ 1838) or from. “being influenced”’ thereby (4 Jones, Kvi-

. dence [5th ed. Gard 1958] § 8893), preventing ‘collusion’?

among witnesses ~ (2 Uniderhill, | Criminal Evidence [Sth

ed. Herrick 1956] $510), and. detecting ‘‘falsehood’’ and

preventing a witness - from ‘‘coloring’’ testimony because

of having heard others (3 Wharton, Criminal Evidence

[12th ed. Anderson 1955] § 840).

Obviously, for the sequestration rule to serve its pur- .

poses completely, it would be necessary to subject to it all -

—T— y

witnesses, including the parties, in a case; and this has -

- been the practice in- some courts. 6 Wigmore, supra, § 1841.

Professor Wigmore suggests that the party should bé ex-

empted from the order of exclusion ‘but be required to |

_ take, the stand first. of the witnesses on his side because,

* “although he has the right to be present during the trial,

“¢yet he has also the duty to-do all that is feasible towards .

preventing suspicion and subserving the opponent’s right’

to sequestration. ’? Ibid, The latter approach has found

_ favor in civil cases in at least Georgia, Kentucky, Missis-

‘sippi, and New Jersey, and in some’ lower Federal courts.

Tift v. Jones, 52 Ga. 538, 542 (1874);.Davis v. Atlanta.

Coca Cola Bottling Co., 119 Ga. App. 422, 167 S.E.2d 231,

232 (1969); Davis v. Kimberlain, 188 Ky. 147, 221 S.W..

226 (1920); Commercial Credit Equipment Corp. v. Kil-

gore, 221 Sv.2d 363, 367 (Miss. 1969); Smillie.v. Lerner, ~

10 N.J. Mise. 484, 159 Atl.-808 (1932) (‘‘This would seem

tobe wholesome. The advantage of the exclusion of wit-:

nesses is thereby obtained, and the disadvantage of the’

«xclusion of a party in interest does not occur, since there

can be no reason for the exclusion of the defendant: after

: he has given his testimony. ’); Garabrandt v. Boston

~ Molasses Co., 10 P.R.Fed. 71 (1917) (Rule of. Court 51);_

Coombs v. Coombs, 59 D.C.App. 30, 32 F:2d 421° (1929).

See also, Ontario Rules of P. & P., Civ. 1947, No. 254: and

rules of court in other Anglican jurisdictions cited in foot-

notes to Sy Visuore supra, § 1869. Dd.

= ~

The rule that the defendant: in a- - criminal case must

testify first has for similar reasons developed iy a number |

of Anglo-American jurisdictions, sometimes by court rule —

‘or degision, sometimes by Statute. Professor Wigmore

“ sfates thet ‘The reason for this rule is the oceasional

readiness of the interested person to adapt his testimony,

When offered later, to victory rather than to veracity, so

as to meet the necessities as laid open by prior witnesses,”’ - °

* 6 Wigmore, ia ib 9 1869.

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The requirement that the defendant in a criminal case i

who chooses to testify must do so prior to testimony of

other witnesses in his behalf has been. approved in two of

- the United States Courts of Appeal. The Court of Ap-

peals for the Sixth Cireuit did so in. United States v.

Shipp, 359-F.2d 185, 189-190 (6th Cir. 1966), cert. den. 385

U.S. 903 ' (1966). The Court of Appeals for the” Ninth

Circuit likewise - appr oved the’ rule in affirming a convic- °

tion in Spaulding v.. United States;. 279 F.2d 65, 66-67

(9th Cir. 1960), cert. den. 364 U.S. 887 adie wherein the -

Court said: =“. ~..

“« Appellant contends that the trial court ceil in

ruling that if appellant would ‘testify in his .own be-

half, he would have .to precede all other defense wit- .

nesses to the stand since he had invgked the procce-

dure by which witnesses . are excluded from the -

courtroor: The trial court’s ruling seems to be a’

sensible approach to the problem ef what to do with

a party who is also a witness’ when the exclusion of

witnesses is called for in order to prevent fabrication

of testimony. See 6 Wigmore, Evidence, §§ 1841, 1869

(3d ed, 1940). In any ‘event, appellant. has failed to.

show how he suffered prejudice by. the ruling. .He .

didn’t take the .stand, and we doubt that there was ©

any causal connection between the ruling here com-

plaired of and the refusal to testify. Indeed, the

only connection we can think of ‘would be that ap-

pellant was rendered’ incapable to tailoring his own

testimony to fit.in with what. previously was sdid by.

other witnesses. In the absence of ania we have,

if anything, a case of harmless error.’

° Two American states, Kentucky and Tennessee, have

adopted statutes requiring the defendant in’.a_eriminal

_ease to testify first among his witnesses, The. Kentucky

statute (Ky.Rev.Stat, 421.225 [1962]) goes back to 1993

(Robinson v. Commonwealth, 459 °S.W.2d.147, 148 [Ky.

. /

bad )

1970]; Anderson v. Commonwealth, 353 8:W. 2d 381, 387

[Ky. 1962]) and reads as follows:

“*(1) In any criminal or’ penal cnvecoation the de- .

fendant, on his own request, shall be allowed to testify — |

in his own behalf, but his failure to do so shall not be

commented upon. or create any presumption against

him. - ag teh? bs |

(2) A defendant o requesting to be allowed: to

testify for himself shall not be allowed to testify in —

'- chief after any other withess has — for, the de-

fense.”? ae

The Tennitssee statute,’ T.C.A,, § 40-2403, ‘enacted as

Chapter 79 of the Acts of Tennessee of 1887,'is set out .

‘hereinabove supra 3. The requirement that the defendant

in a criminal case testify first was early construed by the . -

State Supreme Court: in Morgan v. State, 86 Tenn. 472,

7 S.W. 456 (1888),,to be mandatory and in Clemons v.

State, 92 Tenn. 282, 21 S.W. 525 (1893), tobe imperative.

However, the Court later held that the parties could waive

the requirement. Martin v. State, 157 Tenn. 383, 8 S.W.2d

479 (1928). And the Court held in: Arnold vy. State, 139 ©.

’ Tenn. 674, 676, 202 S.W. 935 (1917), that ‘‘We think it

was not intended by the’ legislature that a defendant: in a

criminal case should be permitted to testify in his own

behalf and not be permitted to rebut testimony against

him which was offered by the State after he had takemand

left the witness stand.”’? In-view of ese later relaxations

of the Court’s early strict attitude toward the statute,

and in view of its holding in Hughes v. State, 126 Tenn.

40, 90, 148 S.W. 543 ( 1912), that witnesses giving evidence

in rebuttal do not go under the. sequestration rule, it

“seems reasonable to expect that the Court would allow a ©

_ defendant in a criminal case to testify on rebuttal even |

though he had not. earlier testified in chief. Recently the |:

Tennessee Supr eme > Court ——— a holding that T.C.A.,

| —10— 7.

- § 40-2403 does not violate the Fifth, Sixth, and ourteenth -

Amendments to thé United States Constitution, refusing

to hold that the statute’violated the rights o? the oon

ant in that case to fair trial,. due process, and equal pr

tection of the law. _ ‘Harvey v. State, 468 8.W.2d 731 (Teak

1971).

A number of Anglicans jurisdictions haveby judicial |

. decision or rule of court followed the practice of requiring »

_ the testifying defendant in a criminal to, testify first. Thus,

in Alberta, Canada, the Court in Rex v. Christenson, "2°

Dom.L. Rep. 379, 386 (1923), stated:

‘*In. a’ criminal casé, where it is intended that thes

accused is to be. called as a witness on his own behalf,

’ -he ought—not neeessarily, but generally as a matter

. of expediency—to ‘be called as the first witness for

the defense, because, otherwise, it is open to observa-

tion to the jury that the accused has coloured or -

adapted his. evidence to fit in with the evidence of the

witmesses who have preceded him, he necessarily being .

present and hearing their evidence.”’. .

In Australia, in Rex v. Richards, McDonald, and Aunger .

(1918), S.A.L.R. 315, the Court stated that ‘‘It is desirable

that he [the defendant] be the first witness called where

witnesses are ordered out of court. *

_. 2 Some years ago in England, L. Os. “Alveretone stated in

Rex. v. Morrison, 6 Cr.App.Rep. 159, 165, 75 J. :. 272 |

(1911): ‘‘In all cases I consider it most important for the

prisoner to be called before any of his witnesses. He ought

to give his evidence before.he has heard the evidence and

cross-examination of any witness he is going to call.’’ In °

_ 1968, the Court of Appeal, Criminal Division (Davies, L.J:,

- Roskill and Cusack, JJ.), converted Lord Alverstone’s *

dictum in Morrison’s case into a rule of law. Regina v.

Smith, 52 Cr.App.Rep. 224, C.A:, 132 J.P. 312, 1 W.L.R.

° ] : -—11— his

636, 112 Sol. Jo. 231, [1968] 2 All. E.R. 115. In the ‘Smith

_ case the defendant in appealing her conviction alleged as.

_ error the requirement of the trial tribunal that she give

evidence first before calling any of her three defense wit-

nesses.’ Cusack, J., delivered the judgment of the Court of

; Appeals, stating in part as follows:

‘‘The. general rule and practice in criminal. cases 1S.

> » that ‘witnesses as to fact on each side should remain _

out of court until they are required to give their evi- »--

dence. The reason for this is obvious.It is that if

they are permitted to hear the evidence of. other wit-

* nesses they may be tempted to trim their own evi-

dence. It is certainly the general practice in he ‘ex-

perience of all the members of this court that. where

an, accused person is to give evidence he gives eVi-

dence before’ other witnesses who may be called on °

his behalf.’ There are, of course, rare exceptions, such’

-as when a formal witness, or a witness about whom

_ there is no controversy, is interposed before the ae-

cused person with the consent of the court in the

special ciréumstances then prevailing. In the view of .

this court the general practice to which I have re-.

ferred is the correct practice which ete to be ob-

served.”?

_ [The Court then sented the kame statements from Rex

v. Morrison. as are quoted arene

‘That . observation was interposed. i in . tlie course of

argument and was obiter, but it is. an authoritative

statement which this court hese and endorses

as corr réetly stating _ the law.’

oe + © #8 # ©

e«

‘As this is °a question which is still raised from

time to’ time in the course of. criminal proceedings,

with which alone the court is dealing; it is\hoped that ©

the statement which.I have read-from LORD ALVER-

7 a

STONE, which is now endorsed ‘by this court, wil

settle the matter: and be accepted as setting out the |

correct’ procedure which ought to be followed in fix:

_ ture cases.’’ :

A law review gps on the Smith Bi ision, Moore,

‘‘Order of Witnesses in a Cr iminal Case,’’ 26 Cambridge

L.J. 185, 185- 186° (1968), observes as to this proposition

.“now . . . elevated to the status of a rule of law’’:

“Tt is, of course, usually very desirable that:a pris-

oner should give evidence, before ‘his supporting wit- |

nesses are’: ‘called. In a er iminal case witnesses, other

than the ‘prisoner, aré not allowed: into court until

they are due to give their evidence. Their testimony: is

given, therefore, in at least comparative ignorance of - .

_ what others have. said, and the opportunities for them

to trim their testimony to accord with that of others "

is’ accordingly reduced. But the prisoner is present

throughout and, if his witnesses give evidence: before —

he does, he is afforded ample opportunity to im his -—

- own evidence.’’

ime ’s briéf (Pet.Br.. 11): quotes Scns Nelson ‘Vv.

State, 32 Tenn. 237, 257° (1852), the statement that “the

experience ‘of wise. men in al ages” has been. that. the

sequestration of . witnesses rule is’ ‘‘invaluable, m: many —

cases, for the ascertainment: of truth and the detection of ~

falsehood.’’ “In & continuing quest - for truth and justice

in the trial of cases, Tennessee continues to use the seques-.

tration rule ‘‘to. detect falsehood:as -well as to prevent any

witness from coloring his, or her, testimony. either pur-—

_ posely or through influence by talking to other witnesses —

.'and hearing them talk. ) Nance v. State, 210 Tenn. 328, ,

333, 358-S.W.2d 327 (1962). T.C.A. § 40-2403 in requiring

the testifying defendant to-take the stand before his other

witnesses is.a Truth-in- Testimony Law—a. rational, logical, |

and legitimate complement of the sequestration of wit-

as a condition to the testifying prosecutor

‘the court room: after the sequestration rule is in éffect

nesses rule, making the latter rule more effective in’ ‘truths,

secking.- Petitioner’s brief recognizes this: By, conceding ~

‘that. ‘‘The fact that a party may not be placed under ‘the

‘rule’ was probably one of the chief reasons for the require- —

' ment that a defendant. testifying i in his own behalf present

higaself for gxamination before other defense witnesses '

testify’? (Pet.Br. 12), that ‘Requiring the defendant to

testify first, if he testifies at all, ensures that he will not

be tempted to’alter his own testimony after hearing other .

evidence presented in his behalf”’ (Pet.Br. 12), that ‘the

. occasional readiness of the interested person to adapt his

testimony, when offered later, to vietory rather than

ver acity, so as to meet the necessities as laid open by prior .

witnesses’’-is a ‘‘rational basis’’ for the T.C.A. § 40-2403

' requirement (Pet.Br. 10), and that “The purpose of this :

‘Code section . . . to insure that a defendant riot be

tempted to color his version of the circumstances by hear-

. ing witnesses in his favor, prior’to. his own testimony”? is

“perhaps » . . legitimate’’ (Pet.Br. 26). : -

To complete thg. ring, the Tennessee judiciary imposes

Baining ine

that he be the first witness examined for the State. _Thus

it was laid down in Smartt v. State, 112 Tenn. 539, at,

80 S.W. 586 (1903) :

“<The | attorney for the State has the ght to such

assistance as the prosecutor can give hig in the man- ':

agement of the State’s case, and, upon #is request,. it

is not er ror.to per mit the prosecutor: to remaia in the

courtroom after the [sequestration | | rule has been

— ealled for; but the court should impose as a condition.

_ that the State, if it desires to use the prosecutér as

ae witness, should examine him first.’’’ -

The. mandatory nature of this requirement is indicated

by its restatemefft in the treatise regarded by generations

., ’ . ° 2

of Tennessee lawyers as the ‘‘Bible’’ of Tennessee prac-*

_— . tice, and procedure, Caruthers, History of a Pawar (8th

ey -

-all the mgre =afuial and legitimate. -

7 of eS

ed. Gilrtath & Aderholid 1963) § 330: - &.

ohn criminal Cases. the prosecutor is excepted: from

‘the [sequestration] rule, but the state must examine

_ him as the first witness.’’ ~ ee se . { &

Therefore, it is ‘‘tit for tat.?’ Whatever ‘‘burden’’. the

: -’ defendant bears by having. to testify, first if at all for the

defense, the State likewise-bears in having to\put. the — |

prosecutor on first if he ig to remain in the courtroom-under

_ the sequestration rtle.. With this added factor in mind,

not mentioned -in Petitioner’s brief, the rule of T.C.A.

§ 40-2403 ‘conceded by him. to have a ‘rational’? basis and ~

to be-‘‘perhaps . : .. legitimate?’ of a) pie }s seen to be

“Tt should be gloat from the authorities cited hereinabove |

that Tennessee has not at all done a unique thing in.

_ adopting the requirement that the testifying - defendant -

testify first among his. witnesses. However, even if Ten-

nessee had done a unique thing in this. regard,. this should

«not argue against the validity. of . adopted requirement. |

«That ‘the ‘near -uniform. judgment of the Nation’ is —

otherwise than the judgment in some of ite pfrts affords .

no basis for. me = read into the Constitution something -

‘not found there.’ ’» Chief Justice Burger, — in. |

. ne v. New York, 399 U.S. 66, 77 (1970)..

Moreover, Tennessee - as ‘any other state in our federal.

. system should be able to serve as a laboratory. for experi-

mentation in government, including the operation of the

judiciary. It is, Mr. Justice Brandeis said, ‘‘one of the

happy incidents of the federal system that a single cou-. .

ragegus state may, if its citizens choose, serve as a labora-

tory ... .¥0New State Ice Co. v. Liebmann, 285 U.S. 262,

280; 311 (1932) (dissenting opinion). This attitude was

' . a . - & ° .

a4 .

Raat : ¢

aes | eae

again eid by : :this Coit recently through Justies

_ Blackmun in McKeiver v. Pennsylvania, 403 U.S. 528,91 -

“ $.GO¥976, 1987 (1971); where it was said, “We are ré- ~

luctant. to disallow the States further to experiment ‘and to

seek in new and different ways the elusive answers to the_-

'. problems of . the young, and we feel that we would be im-. -

peding that experimentation by imposing the jary | trial.’’ ca

In a, federal system such as ours Hie states should be -

allowed some diversity in the: procedures they adopt to

operate their courts and trials in. the administration. ‘of N

justice. This is not a situgtion in which procedures may

_ suitably be duplicated in e¥éry stafé as if they. were cook-.

ies produced by the same cookie cutter. It was in this

spirit that the Court said not lorig:. ago: that ‘“Tolerance

for a. spectrum of state. procedures dealing with a c

mon problem of law enforcement is especially sporopeiata

here. ” Spencer v. State of Texas, 385 U.S, 554, 566 (1967).

In Spencer, the Court expressed its attitude “of moving -

with ‘‘caution before striking, down state. procedures”? and’

further stated: .- \~°

“ Cases in this Court have long proceeded a the

premise that the Due Process Clause guarantees the

fundamental elements of. fairness in. a ¢riminal trial

[citation o ses]. But it has never been thought

‘that such cases establish this Court as a rule-makigg

organ for the promulgation of state rules of criminal

procedure. And none of the specific provisions of the

Yonstitution ordains this Court .with such authority.’’

Spenser v. State, 385 US. 5 5542563-564, 565 (i967).

3 7

Shee

7 ;

nating. Dei tpt RO AS ERR AGATA CA.

| "iL: |

- Petitioner an to Sustain His Contention That

the-Trial Court Applied T.C.A. § 40-2403 So as to Violate -

His. Fifth Amendnient Right to ‘Rempin Silent.

Petitioner’ Ss “reliance upon the Fifth Amendment pre-

sumably rests upon that’ amendment’s prohibitiom that

‘‘No person ... . shall be compelled in any criminal case

io bé a witness against himself,”’ althgugh he phrases it

as a ‘‘right.to remain silent under the Fifth Amendment.’’

" (Pet.Br.. 24), > *? fel

x ¥

Counsel for Petitioner candidly: ‘eoncedes, ‘as any honest |

‘ person must, with regard to T.C.A. § 40-2403, ‘‘Nor does

it deny a defendant the’ bare right to remain silent: ’? (Pet.

Br. 24). The argument seems to be that requiring the — 7

> Petitioner to choose at the beginning of his proof whether

to exercise his right to remain ‘silent is imposed ‘‘at, a-

time when he does not yet know of the effectiveness and

_ scope ‘of his defense”’ and, therefore, serves to ‘chill’ the

exercise of* this right, because he gannot make an: intelli-

ger’ waiver of this right before he’ has seen his defense

—~—*unfold-before the trial court and, jury.’? (Pet.Br. 24).

‘This contention:is repeated i in other-~words by saying that

T.C.A. § 40-2403. ‘‘cuts down on the privilege’’ of remain- .

‘ing silent by ‘‘forcing the defendant to elect-w hether to

exercise or waive the privilege at a time when the desir’

ability for waiving: it is unknown. ” (Pet. Br. 25)”

The answer to this argument is that the: Petitioner eo

counsel should have made preparation for trial so~zas to

know at-the_beginning of the F Petitioner’s proof the ef

fectiveness and scope of his defense and the desirability

for waiving the. ‘ight to remain silent by taking the stand

in his own behalf. Tlie only thing ‘‘chilled’’? is the op-.

pertunity’ otherwise to ‘trim’? or to ‘‘color’’ or to falsify

testimony so as to conform with that which other wit-

’ . \

F : : 7 e? ‘ . \

act,

_\ \ _

17:

_ nesses hitve ‘given after they were put: under oath | and |

; subjected to cross-examination. The State submits that

there is nothing unconstiffitional about a rule which does:

“not deny .the defendant the right ‘fo remain silent but

simply requires him to testify first among his witnesses” if

- he is to testify, at all so as to promote: truthfulness in. his,

testimony in the same way that truth is _promoted as to

all other witnesses by the sequestration of witnesses rule. ot

_ Incidentally, the. Petitioner admits‘that the “perhaps .. oe

legitimate’’, putpose of, T.C.A: § 4022403 “to insure that - |

‘a defendant not be tempted to color his version of the

circumstances -by hearing. “witnesses in his. favor prior to ;

his own testimony’’ is_ such fhat it “cannot be more nar- | |

rowly achieved. ”» (Pet. Br: 26). . -

The’ Petitioner, clabogating “upon bis _contention , ‘that

TCA, § 40-2403 “chills” his exercise of “his right

‘main silent, adds that (1)*the defendant will be sw

to the hazards of “eross-examination, ’ ipeludipg’ | |

upon his character, if he chooses.to testify, (2) the de- =

fendant may not. intelligently ; weigh the advantages and

disgtivantages of testifying until he first. knows whether

testifying would help his cause,.and (3), the choice of

whether to testify is a choice which must ‘be left to the’

-unfettered freedom of the defendant. ° (Pet.Br. 29- 30). As |

8 tothe first-of-these—points,it-isindeniable: that-if the—

defendant chooses to testify he will be subjected’ to ‘the

hazards of : cross-examination, including. questions relating .

to his char acter. However, he would be subjected to those

hazards eat whatever stage of the trial he might testify.

“It should bé noted that “It was stipulated” the defendant

-had no prior convictions. ” (Appx. 9). By choosing at the

beginning of dis pr oof not to testify, the Petitioner in this ~

ease, therefore; was not avoiding a* hazarl that his’ ehar-

acter would be impe ‘ached. by a cross-examination concer-

ing possible prior convictions. As to the second ‘point (that

the defendant may not intelligently weigh the advan-

, ' y)

e . e

= \

. . a Si . ; caer

be ea gedit aie 2 teres

. . - . ; | .

tages and disadvantages of testifying until fie first knows

whether testifying would help his cause), the Respondent

rests upon its argument mede hereinabove (supra 17): that

" adequate preparation for trial will result in knowledge as

__ to whether the testimony offhe defendant would help his —

' " cause. Concerning, the third point (thé t the choice of:

whether. to testify is a choice which : st be left to the

vaanfettiredffeedom” of the defendant), the defendant

has “unfettered freedom’? to make that choice under the

T.C.A,, § 40-2403 requirement unless one means by “unfet-

tered freedom” that the: ehoice be free from.” any difficulty.

- There is no way of getting a “arqund the fact thap the: deci-

sion by a defendant to testify or not to testify may be a

difféult’ decision for him to make whatever. the stage of

the.trial may be at which he makes, the decision. ‘Heré the

Gourt’s recent decision in McGautha ‘v. California, 402

U.S. 183, 91° S.Ct. 1454; 1470 (1972), i ig -in point. In that

. qase the Court held that the policies of ‘the privilege

against compelled self-incrimination are ‘not offended when

"a defendant in a capital.case yields to the pressure to tes-

tify on the issue of punishment at the risk of ‘damaging

his case on guilt. dn dding so, the Court said:

, “Phe criminal process, like the rest of the legal sys- -

tem, is replete with situations-requiring ‘the m: making

of difficult judgments’ as- to which course to follow.

McMann v. Richardson, 397 U.S. 759, 769 (1970). Al-

though a defendant may. have a right, even of consti. .

tutional dimensions, to follow whatever course he

chooses, the Constijution does not by- that token al-.

ways forbid requiring him to choose.”’

In McGautha, the Coyrt pointed to-a mumber of situations

~~ in which the defendant is faced with a difficult choice, none

of, which had ‘been held‘ to violate the privilege against

compelled self-incrimination. These include the choice to

testify in the defendant’ sown behalf although it may

the

ceo

. ‘ \

_ open the door to otherwise inadmissible evidence which ‘j is”

damaging to his éase; taking the stand in. his own behalf °

we ; —19—

a ‘7 aN

although’ he may hen be. cross-examined on matters rea-

sonably related to the subject matter. of his direct: exami-

. nation; taking the stand i in his own behalf although lie may /

then be impeached by proof of prior convictions or the

_ like; after a motion for acquittal at the close of the gov-

ermment? s case is denied, deciding whether to stand on

the motion’ or to put on~a defense with the risk that in

doing so he will bolster the government’ S case enough for ~

‘it to support. a verdict of guilty;‘and ‘in Florida, under a

‘‘notice- of-alibi’’ rule, choosing whether to abandon his

alibi defense or to give the Sfate both an opportunity to:

prepare a rebuttal: and Jeads from which to start. 91 S.Ct..

1454 at 1470- 1472. ° The Court concluded in McGautha,

S*{I]t isnot thought inconsistent with the enlightened ad-

aiinintration of criminal justice to require the defendant to —

. “weigh such pros and cons in deciding whether to testify,’’

91 S.Ct. 1454 at 1471, and ‘‘[T}hé Federal Constitution,

: which nrarks the limits of:our authority i in these cases, does_

' not guarantee trial procedures that are the best of all

worlds, or that accord with the ‘inost enlightened ideas of

-students of the infant science of criminology, é6r even those

that nieasure up to the individual predilections of members

of this Court.’’ 91 S.Ct. 1454 at 1474. The Respondent in

the‘case at bar contends that likewise it is not inconsistent ‘

require the defendant’ to weigh such pros and cons in de-

with the op ar administration | of criminal justice to”

timony which is-served y tHe statute i in question.

ciding whether t the beginning of his proof, es- .

' pecially in view. of the hi public interest i in truthful tes-

Rea eee

- i)

a i. 3: | |

- Petitioner ‘Has Failed to’ Sustain His ‘Contention That

the Trial Court Applied T.C.A. § 40-2403 So as to’ Violate

; His ‘Due Process Rights Under the Fourteenth Amend-

‘ ment. ~ 7 a - a

The’ contention is made by: Petitioner that the require-

ment pf T.C.A. § 40-2403 places a substantial burden on

the defendant in that’ it ‘‘forées him to.exercise his option

4 to testify before he has the opportunity. to observe. the Pe

*- . strength of his defense’’ and that this is such a burden _as-—— ~

to deprive him’‘of due‘ process of law. (Pet.Br..12-13). The

: Respondent’s reply: to. this argument-is~that the defend-

ant should know the strength ‘of his ‘own defense prior to”

_ hearing ft. at theitrial, and.therefore he is not prejudiced -

__by-being required under the statute to ake his decision:

about whether to testify before he has still another oppor-

; tunity, this. time in court, to observe the evidence in, his"

_ behalf. There are many good: reasons. why .a defendant .

- in a criminal proceeding should, be permitted to hear the ;

Witnesses ‘who testify against -him,’ but. there are yo rea- /—

vy: -sons why he must,be allowed to hear in court the witnesses’ . *

: he has called in his defense. “Tf he did ‘not know what aa

their testimony. would. be, it -is difficult to understand why

he would call them in the first place. He is not, of course,

__» thereby deprived of his right ‘‘to be confronted with ‘the

witnesses against him,’’ inasmuch as at the point of be-

' ginning the proof in ‘his behalf, he WT already have been

confronted with the State’s witnesses ‘‘against him.”’ This

constitutional provision on its face has no application to .

the. witnesses in behalf of & defendant. State v. Bomer,

179 Tenn. 67, 78, 162 ‘§.W:2d 515. (1942); Petty v. State,

72 Tenn. 326, 328 (1880). — oe . TAN

‘The Petitioner makes the further argument ‘that his

due process rights have been violated by the application

of T.C.A. § 40-2403 so as allegedly to deny him of effective

ee ee eee ee Te .

- ?

\ :

~~ 4

assistance of ete (Pet. Br. 19- 20). For this «propésit}

Petitioner cites Ferguson v. Georgid, 365° U.S. 570-(1961). .

Petitioner’ s reliance upon the: —— misplaced,

_ howev er, inasmuch as that decision d only, that the re-

-fusal to allow a defendant ’s statement to be directed by

his counsel was a yiolation of the Due Process Clansea, |

Obviously; that” is not the situation here with* the ‘applica-

‘tion, of T.C.A. § 40- 2403, becausé the defendant when. he

takes’ the stand i in his’ own behalf at the. beginning of hisy.,

* ‘proof is “directed in. his testimony bythe: questioning of

his @wn courisel and enjoys the ‘‘oniding hand -of counsel”

referred to in Powgll v. Alahanfs; 287 U.S. 45 (1932). In .

to whether to take the stand at the beginning: of. the proof.

‘requires that the attor ney delicately weigh the pros and.

cons of placing the defendarit on the witness stand” be- . |

pr opriety of having the defendant take the stand’? and

+ this presents. ‘‘undue obstacles’? and shackles ‘the “guid,

ing hand of counsel.’” (Pet.Br. 33). This brings us back -

to the ‘teachings of McGautha v. California, 402 U.S. 183,

91 S.Ct. 1454 (1971), and McMann v. Richardson, 397 U.S.

759, 769 (1970), and cases cited in | those decisions ‘to: the

effect that thie criminal process is *yeplete with situations _

requiring the making of difficult judgments as ta which

Course to follow hut the. Congtitution ‘does not always for-

: bid requiring the defendant to choose. These cases and

. situations are discussed in -Regpondent’s brief under

proposition . II; and its reasoning there is adopted here. —

The Petitioner makes the charge that the requirement of —

T.C.A., § 40-2403 that the defendant present himself as the

first y tues in his ewn behalf is ‘cunféisonable.” (PeBr.

23). To’ the contrary, this requirement is eminently rea- na

sonable as has peen demonstrated in the discussion’ under

the .first proposition of Respondent’s brief, which discus-

sion is adopted but not repeated here... Further, when a

“¥p:

3 Sa

if >

. BS

i, due process argument | is csi on a iii ‘tfaiinens’* ap-

proach, this Court ‘‘has always moved with ‘caution be-_

- fore striking down. state procedures.’? Spencer v. State,

"385 U.S. 554, 565 (1967). And, as the Court pointed out

- in ‘the. Spencer ease, the Dué Process Clause guarantee of

fundamental fairness ina criminal trial does not ““estab-

_ lish this Court as a rulegnaking organ for the promulga- 2

_ tion of state rules of criminal procedure. And none of the. - ~ ;

specific provisions of the Constitution ordains this Court :

with such authdrity. ’? 385°U.S. 554 at 563- 564. See » also, .

Justice Stewart’s concurring’ opinion ‘in sthe same case.

’ 385 U.S. 554 at 569: ‘Further, the Respondent contends

that the’ reasonableness and fairness of the requirement ‘4

of T.C.A., § 40-2403 is all the more evident when it is ‘re-

niembered that ‘Tennessee requires ‘that a prosecutor who

wishes to remain in the courtroom when the sequestration

| of witnesses rule is in effect must give his testimony before

‘any other witnesses for the State are beard. See discussion

_ and authorities under. proposition Io iis brief. Supra 13.

o .

ix ; IV

Whether or Not. T.C. A., 40-2403. as. " Applied by ‘the

Trial Court to the ‘Petitioner in This Case Violated the |

"Sixth Amendment Is Not Properly Before Thijs Court: In

Any Event There Was No Such Violation. |

As noted at the beginning of the enondnt’ s brief,

- the order of this Court -granting the petition for writ of._

certiorari in this case ae limits’ the grant to Ques:

tions HI and IV of the petition, which raised questions

only’ with regard to the Fifth and Fourteenth ‘“Amend-

ments to the United States Constitution: and Article” I. .

Section 9, of the Tennessee Constitaition. (Appx..28). In- \

asmuch as the Court has not granted ceytiorari ‘with re-, -

gard to,a Sixth Amendment ini no such question i is...

Properly before the: Court. — “3 a rer a

2 | ;

£9

in.

AB 5.

. 23 —, ; . : : - - ‘

“Hatther, it habs: be noted that | no contention that the .

trial court violated the Sixth Amendment. to- the. Cotistitu-

‘tion of the ‘United States. in its application of. T.C.A. 2

§ 40:2403 to the trial of Petitioner’s case was e¥er made i in -

pis motion for a ‘new trial to the trial court, nor ‘was it

assigned as error’ in Petitioner’ s brief to: the. Court of |

- Criminal Appeals of Tennessee, nor was it assigned: as

error in Petitioner’s petition to. the Supreme Court of

Tennessee for writ: of certioratzi. ‘ “The Petitioner having

‘failed to raise . this. question at. any poi before any of

‘the. Tennessee courts, the Respondent takes the position

that this Court should. not. now consider this untimely and ..

out-of-order attenipt to place | the trial court in error. If

ihere had been error with regard to the Sixth Amendment,

. the same should have been properly brought to the atten- .

tion of the trial ¢ourt and in turn to the. Tennessee appel- -

Jate courts. See, ¢.9., Hormel v, Helvering, 312.U.S. 552,

556 (1941). There has been no signifieént change in ‘the ea

‘law since the trial . and there is no other factor - which

| grou justify this C uit im ngw. considering this point.

which was nowhere raised belo . Standard Industries, Inc,

sy. Tigrett: — 397 U.S. 586, 587-588 (1970)

~ (dissenting opimion)

Even if it were’ coneluded that: a Sixth Amendment ques-—

tion is before this’ Court, it is not clear at all from. Peti- -. |

_tioner’s brief what his contention is in this regard. The ae

only clause in the Sixth Amendment which the ‘Respond-

ent can conceive of Ahe Petitioner having; weference to is

the guarantee that “In. all critiinal prosecutions, : the ac-

cused shall enjoy the right . ...to be conffonted with the

_ witnesses. against; him... .”’ ‘As poiaied. out’ previously in | -

‘this -brief< (supra 20), T.C. A. § 40- 2403. in@no -w ay. denies a

defendant-his right to be in the courtroonj.{hroughout the

proceedings and to confront all of the prosecution’ S wit-

nesses. against hinis Petitiongr’s complaint seems to be

~ that he has to decide at the beginning of the proof for the,

ry * pane eo 4 wre aM ae

ines deitis Th lh Ra

Lace th cli hs omc TR lit en aoa rite TEN AER ee 014

: , . . "R's e

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Rie

defense whether he will give testimony in his own behalf

‘and. before he-hears the witnesses on, his side of the ¢gase,..

_ Obviously, a guarantee that a defendant has the right to—

_-be confronted with the witnesses against him is no guaran-

tee-of a right to confront. the witnesses for Rim. ‘See State

<-v. Bomer, 179 Tenn. 67, 78, 162 S.W.2d 515 (1942); Petty.

_v. ‘State, 72 Tenn. 326, 328 (1880) ). Moreover, the defend- :

. ant prior to trial has been able to confront every witness.

that will testify for him and knows what their testimony -

will be. ae , eo i

Vv.

Petitioner + Has Failed to. Sustain ‘His Contention That °

the Trial Court Applied T.C.A. § 40- 2403 So as to Violate

His Right: to Testify in His Own Behalf or His Right to

Be Heard Under Tennessee Constitution, Article I, Sec-

tion 9; This-Court Should Not Hold That the Tennessee

Statute in Question Violates the Tennessee Constitution.

The Petitioner douieuds had Tennessee Code Annotated

‘Section 40- 2403. as applied in this case violated his rights |

under Tennessee ‘Constitution, Article I, Section 9, pro-

viding in. part, ‘‘That in all-criminal “prosecutions, the

accused hath the right to be neure by miibelt and his

counsel .. .”’

To support this proposition, the Petitioner’ seems. at one

| point of his brief (Pet:Br. 19) to rely. on the Tennessee

decision; Wilson v. State, 50 Tenn. 232 (1871), but then

at.a later point in his brief (Pet.Br. 21) he-says that the

Wilson iuter pretation of Article IeSecfion 9, ‘‘is no longer?

good law.’’. Finally, it appears that the Petitioner: realty

is relying upon a coneurring. opinion by ‘a single judge -

in the :Wilson case. There (Pet.Br.22) he ‘says that Judge

Freeman in the foresaid concurring opinion. interpret ted. °

Article, Section 9, of the Tennessée Constitution to mean |

| ‘that’ he [the defendant] shall have the privilege of -be-

ing defended in an argum it tates ‘the jury, by sidenenl.

'- in addition to the common law privilege ‘of defending him-

self.”’ 50 Tenn. at 247. The Petitioner qnoted further from ;

. Judge Freeman’s concurring opinion where the Judge

"stated, ‘‘that a prisoner. may be heard in his own defense

-in all criminal prosecutions, and may ‘also, be heard by

his counsel, means simply that such counsel shall make

such argument in his defenses against the prosecttion, as

* may. b® wart antéd ‘by the Jaw and the facts of the case;

‘and that, being heard -by himself, means precisely the.

same thing, no more, no less.’’ 50 Tenn. at 246. If ‘this

| concurring opinion by Judge Freeman in the ‘Wilson. case

_ méans anything more than that Articles, Section 9, guar-

antees. both the deféndant and his counsel the right to be.

heard in ‘argument before ‘the jury, it. is beyond the Re-

spondent’s compreher&Sion. Of cours&, that right is in no |

way involved in the instant case? The: trial‘court below

denied. neither the Petitioner nor his ‘counsel the right

~ to defend. the Retitioner by an’ argument. before: the jury.

For that matter, ‘The Petitioner was hot barred in any re-

spect during the. trial from making an argument at.any

proper time to ‘the judge or to the jury. The only thing

that T.C.A. § 40-2403 as applied by the trial judge in this

case prevented the Petitioner. from doing was to. testify °

‘in his own behalf after other witnesses for the defense had

testified. And that did not+deprive ‘the Petitioner of his

right under Tennessee Constitution, Article TI, Section 9,

‘‘to be heard: by himself and his counsel, sn

In fact, Petitioner in his brief. (Pet. Br. 24) candidly

concedes’ that “Certainly Code ¢ 40-2403 does not deny.a

defendant the right to‘be heard. . .-.’’. The Petitioner’s

‘contention séems to je that Tonne cer (' onstitution, Article | °

I, Section 9, guarantees the defendant the right to be heard

"in testimony at some time later in “his trial after he has’

decided not to testify at the beginning of his proof, Pet.

26 —

Br. 21). But the language of Article I, Section 9, of the

‘Tennessee Constitution does not say that, and Respondent |

' insists that it does not even imply that. In-sum, the de- |

-fendant can be heard by his own testimony, and he and/or

his attorney may argue for the defendant .at the close of .

‘the testimony for both sides, and’ mornin in T.C.A, § 40-

' 2403 -prevents any of this.

The Petitioner made this argument for a strained con-

‘struction of: Tennessee Constitutida, Article I, Section 9,

before the Court of Criminal Appeals of 'Pennéssce and -.

also béfore the Tennessee Supreme Court, but neither the

intermediate nor,the highest court of the State, of Ten-> \!

nessee would buy his argument and construction. Having.

’ .been turned down by the highest courts. of the State of

Tennessee on his, proposed construction of the Tennessee

- Constitution as applied to. the Tennessee statute, T.C.A.

§ 40-2403, the Petitioner now comes before the United

States Supreme Court to try to get this Honorable’-Court

to hold the Tennessee statute in question to be in conflict

with the Tennessee Constitution. This Court has long ad-.

.-hered to-the proposition that the ultimate deterniination

of the validity of a state statute under the state’s consti- .

tution rests with the highest court of that.state. See e.g

Highland Farms Dairy v. Agnew, 300 U.S. 608, 612- 613 x

(1937); Glenn v. Field Packing Company, 29) Us i; 178

(1933); Lehman v. State Board of Public Accountancy,

263 U.S. 394, 397. (1923). More recently, the, Court said

in McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454,

1474 (1971), that ‘‘the Federal: Gonsitintion . . . marks

the limits of our authority i in these cases,’” i.e., cases chal-

lenging the trial procedures of the states,

CONCLUSION

ya 2 ‘

For the a reasons, "Respondent, State of Tennes- &t

see, respectfully submits that TCA, -§ 40-2403 as applied ~

' in the trial of Petitioner’s case below did not violate any .

rights of the Petitioner under the constitutional provisions

_ which are properly before the Court under the Court’ S

grant of certiorari limited to Questions III and IV pre“

sented by his petition and, that, therefore, thé janenent

of the Tennessee courts should be ‘affirmed.

Respectfully submitted a o 7 yom

ere ROBERT E. KENDRICK: |

Deputy Attorney General O°

State of Tennessee a

Supreme Court Building

Nashville, Tennessee 37219

oS Attorney for Respondent

Pa _

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