# Respondents Brief — Brooks v. Tennessee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0018%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1972 - **Citation:** 406 U.S. 605 ## Text 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 ak 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) 24 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 Court ——— a holding that T.C.A., 3 ? | —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. a . - . - + ° ] : -—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. r > » 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, co with which alone the court is dealing; it is\hoped that © the statement which.I have read-from LORD ALVER- Q 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) : “ *? 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 I 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. 7: ciding whether t the beginning of his proof, es- . ' pecially in view. of the hi public interest i in truthful tes- Rea eee | i) - 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 s 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 Wa 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 . this connection, the Petitioner argues that the: decision as © 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- . | fore the defendant and his counsel an deterfnine “the .. 0 © 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 nm 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 \! 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, es 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 _ ow --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0018%3A2. Public record. Not legal advice.