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IN THE CIRCUIT COURT OF COUNTY, MISSISSIPPI STATE OF MISSISSIPPIVS. CAUSE NUMBER DEFENDANT MOTION TO BAR INTRODUCTION OF ANY EVIDENCERELATING TO PRIOR CONVICTIONS OR BAD ACTS COMES NOW, , by counsel, and moves this Court pursuant to the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, and Article 3, §§ 5, 12, 13, 14, 15, 16, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 31 & 32 of the Mississippi Constitution to bar introduc tion of any evidence relating to prior convictions or bad acts. In support of his/her motion, states as follows:1. At 's trial, the State apparently intends to introduce evidence of his prior conviction for Interstate Transportation of Stolen Vehicle and Interstate Transporta tion of Stolen Firearms. These are the only prior convictions and bad acts which have been made known to counsel. It should be noted that the prosecution is under an obligation to give notice to the defense of any bad act which they seek to introduce. As the Mississippi Supreme Court has held, the prosecution must supply, well before trial, "[c]lear notice that previous convictions will be introduced at the [sentencing phase of the] trial . . . ." Hewell v. State, 238 Ga. 578, 234 S.E.2d 497, 499 (1977); accord Gates v. State, 229 Ga. 796, 194 S.E.2d 412 (1972). 2. Various efforts may be made to justify the admission of this evidence at trial. None is legitimate, and this Court should exclude the evidence altogether: I. INTRODUCTION: THE ERRONEOUS ADMISSION OF UNCONSTITUTIONAL PRIOR BAD ACTS IS PARTICULARLY PREJUDICIAL IN A PROCEEDING WHERE LIFE IS AT STAKE I. Prior to discussing their application to this case, identifies the legal parameters by which this Court must judge the admissibility of prior convictions and prior bad acts in this capital prosecution.A. The Prosecution always bears the burden of proving the validity of any conviction which it seeks to use against the accused. 1. The Supreme Court long since placed the burden of proving the waiver of constitutional rights on the State. For exam ple, when the accused claimed that he was denied counsel at his trial, the Court held that "[t]o cast . . . a burden on the accused is wholly at war with the standard of proof of waiver . . . ." Carnley v. Cochran , 369 U.S. 506, 514, 82 S. Ct. 884, 8 L. Ed. 2d 70 (1962) (citing Johnson v. Zerbst , 304 U.S. 458, 464-65, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938)). It is one thing to say that the prosecution should bear the burden of proof where the defendant challenges the conviction for which he or she is currently serving time. Twice as many reasons exist for casting that burden upon the State when the prosecution seeks to use a prior conviction against the accused a second time to assure further punishment. It is bad enough that the accused should suffer punishment once for a conviction which was unconstitutionally obtained. Where he or she is to be punished a second time as a result of the unconstitutional conviction, "it would be perverse to treat the imposition of punishment pursuant to an invalid conviction as an aggravating circumstance." Johnson v. Mississippi, 486 U.S. 578, 586, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988). Indeed, it is an equitable rule which places the burden of proof upon the State to prove that a prior conviction is valid. As the Court held in United States ex rel. Savini v. Jackson, 250 F.2d 349 (2d Cir. 1957):To the extent that any State makes its penal sanctions depend in part on the fact of prior convictions . . . necessarily it must assume the burden of [demonstrating] . . . the constitutionality of such prior convictions.Id. at 355; accord Pope v. State, 256 Ga. 196, 345 S.E. 2d 831, 844 (Ga. 1986) (citing Marshall v. Lonberger, 459 U.S. 422, 435, 103 S. Ct. 843, 74 L. Ed. 2d 646 (1983)); Wilson v. State , 395 So.2d 957, 960 (Miss. 1981) (burden on the prosecution to "prove the [validity] of the previous convictions and prove them beyond a reasonable doubt"). Thus the State bears the burden of proving the contrary of each and every allegation set forth below.B. If is denied a ruling in limine on this matter, he will be denied his constitutional rights. 1. As another threshold issue, is entitled to an in limine ruling on this question prior to trial. See, e.g., McInnis v. State, 527 So.2d 84, 87 (Miss. 1988); Johnson v. State, 525 So.2d 809 (Miss. 1988); Peterson v. State, 518 So.2d 632 (Miss. 1987). An in limine ruling is important to allow the defense to develop strategy. For example, if the prior convictions are to be admitted to "impeach" should he testify, this will be significant pressure for him not to do so. 2. The accused has the absolute right to choose whether to testify or not, and the choice must not be a result of coercion by the State. See, e.g. , Rogers-Bey v. Lane, 896 F.2d 279, 283 (7th Cir. 1990); United States v. Martinez, 883 F.2d 750, 756 (9th Cir. 1989); United States v. Bernloehr , 833 F.2d 749, 751 (8th Cir. 1987); United States ex rel. Wilcox v. John - son, 555 F.2d 115, 118-19 (3d Cir. 1977); United States v. Butts, 630 F. Supp. 1145, 1148-49 (D. Me. 1986); State v. Neuman, 371 S.E. 2d 77, 80-82 (W.Va. 1988); see also Rock v. Arkansas, 483 U.S. 44, 49-51, 107 S. Ct. 2704, 97 L. Ed. 2d 37 (1987). It would be ineffective- ness per se for defense counsel to advise regarding his options without securing an advance ruling on whether the invalid prior convictions could be used to impeach him. Quillan v. State, 626 S.W. 2d 414, 415 (Mo. App. 1981); People v. Shells, 94 Cal. Rptr. 275, 483 P.2d 1227 (1971). 3. If this Court rules that may be impeached by illegitimate prior convictions: The government must admit that the tactical choice to remain silent it more likely the product of the court's ruling than the defendant's free selection among strategic options.United States v. Cook, 608 F.2d 1175, 1184 (9th Cir. 1979) (en banc), cert. denied, 444 U.S. 1034, 100 S. Ct. 706, 62 L. Ed. 2d 670 (1980). As the Court held in Biller v. Lopes, 834 F.2d 41 (2d Cir. 1987), where a challenge is made to the use of an invalid prior conviction, the "denial of his in limine motion to preclude [its] use on cross-examination . . . deprived him of the opportunity to testify in the [later] case. . . ." Id. at 42. 1. If elects to proceed with his testimony, and he is erroneously impeached with an invalid prior conviction, any resulting judgment will be reversed. "We conclude that the Burgett rule . . . was intended to prohibit [the] use [of unconstitutional convictions] 'to impeach credibility,' for the obvious purpose and likely effect of impeaching the defendant's credibility is to imply, if not prove, guilt." Loper v. Beto, 405 U.S. 473, 483, 92 S. Ct. 1014, 31 L. Ed. 2d 374 (1972). 2. If the denial of an in limine ruling will infringe upon the accused's right to make a knowing, intelligent and voluntary decision concerning his or her Fifth Amendment right to testify, it will also render it impossible for counsel to provide effective assistance. For example, if were forced to give up his right to testify for fear that he would be improperly impeached, the defense would have to spend the entire trial--beginning during voir dire--seeking to assure that the jury will not take 's assertion of his Fifth Amendment privilege as an implicit admission of guilt. If were going to testify, the defense would not address the issue. An in limine ORDER should therefore be entered, barring use of any convictions and bad acts against , for any purpose.C. There are many examples of legal flaws which may result in the exclusion of a prior conviction from a capital trial. 1. In Johnson v. Mississippi, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988), the Supreme Court held that no death sentence can stand when it is predicated, at least in part, on a prior, invalid conviction. See also Zant v. Stephens, 462 U.S. 862, 887 n.23, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983) ("even in a non-capital sentencing, the sentence must be set aside if the trial court relied at least in part upon . . . convictions that were unconstitutionally imposed"). There are many ways in which a prior conviction may be invalid. For example, in Zant v. Cook, 259 Ga. 299, 379 S.E. 2d 780 (Ga. 1989), the Georgia Supreme Court relied on several different grounds in invalidating a prior 1950 murder conviction which had been used in the penalty phase of Cook's trial. 2. Certainly, at a most basic level, the denial of right to counsel makes a prior conviction inadmis sible. See, e.g., Burgett v. Texas, 389 U.S. 109, 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967); United States v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972); Turner v. Hopper, 231 Ga. 672, 203 S.E.2d 481 (1974); Hopper v. Thompson, 232 Ga. 417, 207 S.E.2d 57 (1974); Houser v. State, 234 Ga. 209, 214 S.E.2d 893 (1975); Clenney v. State, 229 Ga. 561, 192 S.E.2d 907 (1972). Even a misdemeanor conviction stemming from a trial where the accused did not have the right to counsel cannot be used to enhance sentence. Baldasar v. Illinois, 446 U.S. 222, 100 S. Ct. 1585, 64 L. Ed. 2d 169 (1980) (while no right to counsel where incarceration not possible on misdemeanor charge, such conviction cannot be used later to enhance a prison sentence). 3. If the accused has the right to counsel for a prior conviction, it naturally follows that he or she has the right to the effective assistance of counsel. For example, in Zant v. Cook, the Court held that Cook's 1950 "trial attorneys 'fell well below the standard of reasonably effective assistance. . . .'" Id., 379 S.E.2d at 781; see also Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). 4. The accused also has the right to an appeal which must, in turn, be effectively litigated. In Zant v. Cook, the Court held that "Cook was denied his right to appeal his 1950 conviction by the state's failure to preserve the transcript of his trial and by the failure of his attorneys to advise him of his right to an appeal." Id., 379 S.E.2d at 781 (emphasis supplied); see also Johnson v. Mississippi, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 575 (1988) (accused not told of right to appeal). The same analysis would hold if the accused were denied counsel, or effective counsel, on appeal. Evitts v. Lucey, 469 U.S. 387, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985). 5. Another common basis for the invalidation of a prior conviction is the involuntariness of a guilty plea. For example, in Pope v. State , 256 Ga. 196, 345 S.E. 2d 831, 844 (Ga. 1986), the Georgia Supreme Court held that, once the accused objects to the introduction of prior convictions on the ground that a guilty plea was involun tary, the prosecution bears the burden of proving the plea voluntary. The trial court is under an obliga tion, prior to accepting a guilty plea, of informing the accused that it will result in the waiver of: (1) the right to trial by jury;(2) the presumption of innocence;(3) the right to confront witnesses against one self;(4) the right to subpoena witnesses; (5) the right to testify and to offer other evidence;(6) the right to assistance of counsel during trial;(7) the right not to incriminate oneself. In special cases, the trial court may be obligated to advise the accused of other facts. See, e.g., United States v. Myers, 451 F.2d 407 (9th Cir. 1972) (accused must be told the maximum sen- tence which could be imposed); Durant v. United States, 410 F.2d 689 (1st Cir. 1969) (accused must be told when he will not be eligible for parole for a cer tain time). For example, a plea may be invalid if it is taken while the capital case is pending, and the accused is not informed that the conviction may be used against him at the penalty phase of the capital trial. McNary v. State, 493 N.E.2d 824 (Ind. App. 1986); State v. Hayes, 423 So.2d 1111 (La. 1982). Furthermore, a plea may be invalid because the accused was misadvised by the court or by counsel. For example, the defendant in Pope had entered a plea of guilty to armed robbery in 1975, because he incorrectly was advised that he might receive the death penalty if he went to trial. 6. A prior conviction may also be invalid if it was predicated on an involuntary confession. It may be, for example, that the prosecution is unable to affirmatively show that a confession used to secure the conviction was voluntary, Martinez v. Estelle , 612 F.2d 173, 175 (5th Cir. 1980), or that the accused was allowed his right to a Jackson-Denno hearing outside the presence of the jury. Johnson v. Mississip pi, 486 U.S. 578, 108 S. Ct. 1981, 100 L. Ed. 2d 375 (1988). 7. There are many other legal errors which may result in the invalidation of a prior conviction. For example, the courts have condemned the use of a conviction by a non-unani - mous 6-person jury, Bourgeois v. Whitley, 784 F.2d 718, 721 (5th Cir. 1986); a conviction where a Grand Juror was seated on the Petit Jury trying the case, Zant v. Cook , 379 S.E.2d at 781; a conviction predicated on a statement taken in violation of Fifth Amendment, United States v. Burt , 802 F.2d 330 (9th Cir. 1986); a conviction predicated on a violation of the Fourth Amendment, Beto v. Stacks, 408 F.2d 313 (5th Cir. 1969); and, a violation of the defendant's right to be competent when tried. Weaver v. McKaskle, 733 F.2d 1103 (5th Cir. 1984). 8. Parenthetically, in addition to the legal invalidity of a prior conviction, the manner in which it is used may violate the rights of the accused. For example, only violent convictions may be used at the penalty phase in a capital trial. See, e.g., State v. Gill, 255 S.E. 2d 455 (S.C. 1979) (statutory rape not a violent offense). II. APPLYING THE LAW TO THIS CASE IT IS CLEAR THAT THE STATE SHOULD NOT BE PERMITTED TO USE ANY BAD ACT AGAINST 1. Turning to the facts of this case, it is apparent that the State cannot bear the burden of proving the validity of any of the prior convictions or prior bad acts which have been iden- tified. A. The prior conviction for Interstate Transportation of Stolen Vehicle and Interstate Transportation of Stolen Firearms was unconstitutionally obtained and cannot be used for any purpose in this trial. 2. The conviction for Interstate Transportation of Stolen Vehicle and Interstate Transportation of Stolen Firearms entered against is invalid for a multitude of reasons. First, there is no complete record available of the case against him. Omitted from the record on appeal is the whole preliminary hearing, the entirety of voir dire, the selection of the jury, almost all of the prosecution's opening statement. The State bears the burden of establishing a clear and complete record of criminal proceedings. Wright v. Lacy, 664 F. Supp. 1270, 1275 (D. Minn. 1987) (citing Golden v. Newsome, 755 F.2d 1478, 1479 (11th Cir. 1985)). Ultimately, the State has the "duty . . . to have the trial testimony entered in the records of the court and to file a transcript following a guilty verdict." Zant v. Cook, 259 Ga. 299, 379 S.E. 2d 780, 781 (1989) (citing Montgomery v. Tremblay, 249 Ga. 483, 292 S.E. 2d 64 (1982)); Wade v. State, 231 Ga. 131, 200 S.E. 2d 271 (1973)); see also Parrot v. State , 134 Ga. 160, 161, 214 S.E. 2d 3 (1975); Graham v. State, 757 S.W. 2d 538, 541 (Ark. 1988); Gardner v. State, 754 S.W. 2d 518, 524 (Ark. 1988). This rule has been reiterated in our State. See Doby v. State, 557 So.2d 533, 536 (Miss. 1990); Suan v. State, 511 So.2d 144, 147 (Miss. 1987). There is a presumption of prejudice which arises when the indigent accused is denied his right to a free transcript. United States v. Selva, 559 F.2d 1303, 1306 (5th Cir. 1977). 3. Turning to the errors which are apparent even from the record, it is clear that the trial was not a fair one. 4. There was never any showing that -- being coerced by a group of white police officers--was adequately apprised of the possible consequences of his alleged "consent" to search his vehicle, or that he knowingly, intelligently and voluntarily gave this "con sent." Evidence obtained in a warrantless search is only admissible against a defendant if it is established that consent was freely and voluntarily given, the product of rational intellect and free will. Bumper v. North Carolina, 391 U.S. 543 (1968); Jothier v. State, 340 S.E. 2d 624 (Ga.App. 1986) (con- sent must be result of essentially free and unrestrained choice); United States v. Kapperman 764 F.2d 786 (11th Cir. 1985) (consent must be voluntary); United States v. Johnson, 563 F.2d 936 (8th Cir.), cert. denied 434 U.S. 1021 (1977); United States v. Iovine, 444 F.Supp. 1085 (E.D.N.Y. 1978) (consent must be result of rational and voluntary choice); United States v. Ellis , 547 F.2d 863 (5th Cir. 1977) (consent must be given freely and voluntarily); United States v. Jones, 641 F.2d 425 (6th Cir. 1981) (same); United States v. Gavinia , 740 F.2d 174 (2d Cir. 1984) (same). The prosecution bears the burden of proving that consent is given freely and voluntarily. Florida v. Royer, 460 U.S. 491 (1983); United States v. Robinson, 690 F.2d 869 (11th Cir. 1982); United States v. Chemaly , 741 F.2d 1346 (11th Cir. 1984). The State must proffer clear and convincing evidence that consent was given freely and voluntarily. United States v. Jones, 352 F.Supp. 369 (S.D.Ga. 1979), aff'd, 481 F.2d 1402 (5th Cir. 1979); United States v. Parker, 722 F.2d 179 (5th Cir. 1983); United States v. Wuagneux, 683 F.2d 1343 (11th Cir. 1982), cert. denied 464 U.S. 814 (1982); United States v. Pugh 417 F.Supp. 1019 (W.D. Mich. 1976); United States v. Robinson, supra, (exceptionally clear evidence); United States v. Reese, 730 F.2d 1189 (8th Cir. 1984); United States v. McCaleb, 552 F.2d 717 (6th Cir. 1977) (prosecution must prove by clear and positive testimony that consent was unequivocal, specific, and voluntarily given). Absent such a showing, the fruits of the search may not be introduced against the accused. 5. Mental deficiency and susceptibility to pressure are bases for finding consent involuntary. United States v. Watson, 423 U.S. 411 (1976) (factors include mental deficiency of defendant); United States v. Alvarado-Bermudez , 499 F.Supp. 1070 (E.D.N.Y. 1980) (lack of mental capacity relevant consideration although no supportive evidence found in record). The vulnerability of the particular defendant must also be considered. United States v. Medico, 557 F.2d 309 (2d Cir. 1977) (voluntariness depends upon the possibly vulnerable subjective state of mind of defendant when consent given). 6. Even were the prior conviction not unconstitutional, it would still not be admissible at 's trial for other reasons. With any prior conviction, for example, it is clear that "the state has the burden of proving . . . why it should be admitted to attack credibility." Johnson v. State, 525 So.2d 809, 812 (Miss. 1988). As the court explicitly held in Johnson v. State , 525 So.2d 809 (Miss. 1988), a conviction for Interstate Transportation of Stolen Vehicle and Interstate Transportation of Stolen Firearms should not be used to impeach should he take the stand, since it is obviously not relevant to his credibility: [T]he impeachment value of the crime [of rape], weighs against its admissibility. * * * [It is a] "rule of thumb" that convictions which do not relate to credibility . . . generally have little value for impeach ment purposes. Here the prior conviction of rape has little bearing on the defendant's veracity.Id. at 812 (quoting Gordon v. United States, 383 F.2d 936, 940 (D.C. Cir. 1967)). 7. For these reasons, the Interstate Transportation of Stolen Vehicle and Interstate Transportation of Stolen Firearms conviction should be excluded from the trial for all purposes. WHEREFORE, this Court should hold an evidentiary hearing on this matter, and enter an order in limine granting the relief requested. Respectfully submitted,_______________________________________ Attorney for Of Counsel: Telephone: MSB # Attorney for CERTIFICATE OF SERVICE I, , attorney for , do hereby certify that I have on this day delivered, by hand, a true and correct copy of the foregoing Motion to This the day of , 20 . _____________________________