Smith v GA Brief for the Respondent in Opposition

    IN THE
SUPREME COURT OF THE UNITED STATES

October Term, !.'.•> 76

No.

REBECCA A. SMITH, a/k/a REBECCA A. MACHETTI,
Petitioner,

STATE OF GEORGIA,
Respondent.

ON PETITION FOR V.RiT OF CERTIORARI 
TO THE SUPREME COURT OF GEORGIA

BRIEF FOR THE RESPONDENT IN OPPOSITION

v.

ARTHUR K. BOLTON Attorney General

Please serve: ROBERT S. STUBBS, IIChief Deputy Attorney General
SUSAN V. BOLEYN 132 State Judicial Bldg. 
40 Capitol Sq., S.W. 
Atlanta, GA 30334 
(404) 656- 6344

RICHARD L. CHAMBERS Deputy Attorney General

JOHN C. WALDENSenior Assistant Attorney General

SUSAN V. BOLEYNStaff Assistant Attorney General



INDEX

STATEMENT OF THE C A S E ...................................... 3
REASONS FOR NOT GRANTING THE WRIT 

%I.The exclusion for cause of two veniremen 
who expressed their opinions that their 
general conscientious objection to the im­
position of the death penalty would prevent 
them from making an impartial decision in the 
case, and from considering the evidence produced 
in this specific case, were properly excused for 
cause, and their exclusion did not violate Peti­
tioner's rights under the Sixth or Fourteenth
Amendments................................................. 5

A. The exclusion from the jury of two venire­
men with conscientious scruples against the im­
position of the death penalty was not violative-

V

of any of Petitioner's rights under either the 
due process or equal protection clauses of the 
Fourteenth Amendment................................... 9

B. The test of exclusion utilized by the trial 
court was in accordance with the constitutional 
standards as enunciated in Witherspoon v. Illinois,
391 U.S. 510 (1968) .10



C. The exclusion of prospective jurors with 
conscientious scruples against capital punish­
ment did not deprive Petitioner of her right Io

*
a representative jury. ................................ i2

D. Questioning prospective jurors concerning 
their attitudes towards the death penalty 
did not violate Petitioner's rights under the
Sixth and Fourteenth Amendments to the Constitution. . .14

II. The imposition of the death penalty under the
Georgia capital punishment statute would not be 
violative of Petitioner's rights under the Eight 
or Fourteenth Amendments to the United States 
Constitution........................................... 15

III. Consolidation of Petitioner's case with that of 
v her husband on appeal to the Supreme Court of

Georgia did not violate Petitioner's rights under 
the Fifth or Fourteenth Amendments to the United 
States Constitution, as these cases were separately 
docketed and all enumerations of errors considered.. . .16

IV. The trial court properly admitted the testimony of
police investigators, Wooters and Bieltz, concerning 
their interviews with the Petitioner as this was not 
violative of Petitioner's Fifth or Sixth Amendment 
rights under the Constitution.......................... 18

ii



V. The State's elicitation at trial of the
fact that Petitioner had not disclosed 
exculpatory evidence during police inter­
views did not violate Petitioner's right %
•to due process, as Petitioner was not "in 
custody" at the time of these interviews 
and her "silence" was prior to being advised 
of her Miranda rights.................................. 22

CONCLUSION ...................................................24
CERTIFICATE OF SERVICE.........................................25

iii



TABLE OF AUTHORITIES
Page

Cases Cited:

Brov.:iy. Be to, 468 F. 2d 1284, 1286 (5th Ci.r. 1972)
Doyle v. Ohio, U.S.  49 L.Ed.2d 91 (1975)
Duncan v. Louisiana. 391 U.S. 145 (1968)
Gibson v. State. 236 Ga. 874 (1976)
Gregg v. Georgia
Miller v. State.
Miranda v. Ari.zo:
Smi th v. State,
United States v.
United States v.Hft.i ̂e(3—States—v. Mueller, 510 F. 2d 1116 (5th Cir. , April 7, 1975). 
Witherspoon v. Illinois, 391 U.S. 510 (1968)

. 20,21 

. 22,23 

. 12 

. 11 

. 15,16 

. 9

. 18,21,22 

. 8,16,20 

. 21 

, 21

5,8, '0, l 
12, 13

iv



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1976

NO. 76-

REBECCA A. SMITH, a/k/a 
Rebecca Machetti,

Petitioner, 
v.

STATE OF GEORGIA,
Respondent.

ON PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF GEORGIA

BRIEF FOR THE RESPONDENT IN OPPOSITION

QUESTIONS PRESENTED
1.

\

Whether questioning prospective jurors on their 
attitudes concerning the death penalty, and excluding two 
prospective jurors for cause on the basis of an expression 
of an "unconditional reservation" against the imposition of 
the death penalty violate petitioner's rights under the Sixth 
or Fourteenth Amendments to the Constitution?

2 .
Whether the Georgia Capital Punishment statute recently

upheld in Gregg v. Georgia, ____ u.S. ____, No. 74-6257, decided
July 2, 1976, violated petitioner's rights under the Eighth or
Fourteenth Amendments?



3.
Whether the consolidation on nppeel to the Supreme Court 

*
of Georgia of petitioner's case with that of her husband when 
the cases were tried separately, docketed separately in the 
Supreme Court, were based on the same underlying facts, and 
raising almost identical enumerations of error, was prejudicial 
to petitioner's constitutional rights?

4.
Whether the admission into evidence of testimony of law 

enforcement officials concerning interviews held with the 
petitioner while she was not "in custody" violated her rights 
under the Fifth and Sixth Amendments to the Constitution?

5.
Whether the State's elicitation at trial of the fact 

that petitionee had not disclosed certain exculpatory evidence 
during inteiviews with the police violated her Fourteenth 
Amendment right to Due Process when this "silence" was not 
"in the wake" of being given Miranda warnings as it did not 
occur during custodial interrogation?

-2-



PART ONE

STATEMENT OF THE CASE

Petitioner, Rebecca Akins Smith, a/k/a Rebecca Akins 
Machetti, was indicted by the Ribb County, Georgia grand jury 
in its October'Term, 1974, with two counts of murder, and was 
subsequently tried and convicted of both offenses on January 30, 
1975. (R. 3-5; 30). The jury also found that both of the
murders were committed for the purpose of receiving money or 
other things of monetary value, and a sentence of death was

I imposed on both counts. (R. 31-33).
|

|l In the late afternoon of August 31, 1974, Joseph Ronald 
Akins and his wife of twenty days, Juanita Knight Akins, were 
lured into a secluded area of Bibb County near Macon, and 
brutally blasted by a shotgun at close range. (R. 443-50).
Mr. Akins was found in a pool of his own blood at the side of 
his car, and Mrs. Akins was left stretched across the front 
seat of the automobile, splattered with blood, and surrounded 
by fragments of her teeth, hair and body tissue.}i

The conspiracy to kill the Akins was born in Miami,
Florida. Akins' former wife, Rebecca Akins Smith Machetti,
together with a friend, John Maree, plotted the August 31
tragedy with the intent of redeeming the proceeds of Akins'

\ ‘insurance policies, the beneficiaries of which were Mrs. 
Machetti and her three daughters by Akins. Presumably, Maree 
was to profit one thousand dollars for his participation, and 
Machetti wished to enhance his reputation in the underworld 
as a "hit man."

-3-



An investigation of the double murder was launched
irrunediately by the Bibb County Sheriff's Department. ■■v.

Akins' supervisor informed the authorities that his former 
employee was recently divorced, and that the deceased had 
previously been the targets of threats from his ex-wife. 
Investigation of this information ultimately led to the 
arrest of appellant and her husband, on October 16, 1974.

Additional facts will be developed as necessary for a 
more thorough illumination of any issue raised in the petition.



PART TWO
FOR NOT GRAOTINGTHE_WRIT

T..s exclusion for cause of two veniremen
« iEXPRESSED THEIR OPINIONS THAT THEIR 
GENERAL CONSCIENTIOUS TO THE IMPOSITION OF 
THE DEATH PENALTY WOULD PREVENT THEM FROM 
MAKING AN IMPARTIAL DECISION IN THE CASE,
AND FROM CONSIDERING THE EVIDENCE PRODUCED 
IN THIS SPECIFIC CASE, WERE PROPERLY EXCUSED 
FOR CAUSE, AND THEIR EXCLUSION DID NOT VIOLATE 
PETITIONER'S RIGHTS UNDER THE SIXTH OR 
FOURTEENTH AMENDMENTS.

Petitioner contends 
from the jury for cause, 
tion, was wrongful under 
391 U.S. 510 (1968).

"District Attorney:
\

Juror:
District Attorney: 
Juror:
District Attorney: 

Juror:
District Attorney:

of two veniremen 
the following examina- 
Witherspoon v. Illinois,

Are you conscientiously 
opposed to capital punish­
ment?
Yes sir.
Beg your pardon?
Yes
You are opposed to capital 
punishment?
Yes, sir.
Ms. Smith, would your 
reservations about capital 
punishment prevent you from 
making an impartial decision 
as to the guilt or innocence 
of the Defendant?

that the exclusion 
on the basis of 
the standards of

-5-

i



Juror:Juror:
District Attorney:

Yes, sir.
Have you all ready decided 
that if you are chosen as 
a juror that you would, if

% you and your €~. 1 low jurors 
found the Defendant guilty of 
the.capital offense as charged 
in this case, the offense of 
murder, that you would vote 
against a recommendation of 
the death penalty, regardless 
of the circumstances as they 
develop from the witness stand?

Juror: Yes, sir.
District Attorney: You have all ready made that 

dec is ion?
Juror: Yes, sir.
District Attorney: So then would it be fair to 

say that you are not prepared 
to consider fully and completely 
the death penalty as one of 
the penalties provided by law 
in this case, in the event you 
and your fellow jurors find 
the Defendant guilty of murder?

Juror: Yes, sir.
District Attorney: You have all ready made the 

decision that you would not 
consider the death penalty? 
Your honor I move to excuse 
the jurors for cause.

The Court: The juror is disqualified.
Defense Counsel: I concur with the Court."

-6-



The following are the questions asked to the second 
venireman' who was disqualified for cause:

"District Attorney: Are you conscientiously 
opposed to capital punish­

* ment?
Juror: Yes, sir.
District Attorney: You are, sir?
Juror: Yes, sir.
District Attorney: Would your reservation about 

capital punishment prevent 
you from making an impartial 
decision in this case as to 
the Defendant's guilt?

Juror: I believe it would.
District Attorney: Have you all ready decided 

that if you and your fellow 
jurors find the Defendant, 
on either or both of the counts, 
with which she is charged, that 
you would vote against the 
recommendation of the death 
penalty without regard to the 
facts and circumstances which 
might emerge during the course 
of this trial?

Juror: I would have to beagainst 
execut ion.

District Attorney: So you are not then in position 
to consider fairly and fully 
the death penalty as one of 
the penalties?

Juror: No, sir.

i -u i



District Attorney: I move we excuse this
juror for cause.

The Court: The juror is disqualified."
(T. 35-37)

The Georgia Supreme Court, however, determined that these 
two jurors were properly excluded for cause and that there was 
no violation of the standards set forth in Witherspoon v. Illinois, 
supra.

"The standards of jury selections applicable 
to death cases as set forth in Witherspoon as 
amplified in Boulden v. Holman, 394 U.S. 478 
(89SC 1138, 22 L.E.2d 433) and Maxwell v.
Bishop, 398 U.S. 262 (90 S.C. 1578, 26 L.E.2d
221), are that 'a sentence of death cannot be 
carried out if the jury that imposed or 
recommended it was chosen by excluding veniremen 
for cause simply because they voiced general 

' objections to the death penalty or expressed
conscientious or religious scruples against 
its infliction.’ See also, Miller v. State, 224 
Ga . 627(8) (163 S.E.2d 730) (1968); Simmons v.
State, 226 Ga. 110(12) (172 S. E. 2d 680) (1970);
Ross v. State, 233 Ga. 361(3) (211 S.E.2d 356)
(1974) . . . .

The voir dire transcript in the case of 
Rebecca Machetti reveals that the jurors who 

. indicated an unconditional reservation to the 
imposition of the death penalty were excused 

■ for cause by the trial court.

This enumeration is without merit. (Smith 
v. State, 236 Ga. 12, 21-22, 222 S.E.2d 308, 
316 (1976)."

-8-



This basis, on which the Georgia Supreme Court made their, 
decision, being a valid one, based on the applicable legal 
standards, offers no issue which needs to be decided by this 
Court regarding the exclusion of these jurors.

A. THE EXCLUSION FROM THE JURY OF TWO VENIREMEN 
WITH CONSCIENTIOUS SCRUPLES AGAINST THE IM­
POSITION OF THE DEATH PENALTY WAS NOT 
VIOLATIVE OF ANY OF PETITIONER'S RIGHTS 
UNDER EITHER THE DUE PROCESS OR EQUAL PRO­
TECTION CLAUSES OF THE FOURTEENTH AMENDMENT.

Petitioner asserts that Georgia's bifurcated trial statute 
which covers capital sentencing does not contain a requirement 
or preference that the sentencing jury be the same as the jury 
which determines guilt or innocence. Petitioner argues as a 
result of this assertion that equal protection and due process 
have been violated. However, since the Georgia Supreme Court
in Miller v. State, ____ Ga. ____ (decided September 8, 1976),
held that the Georgia bifurcated trial statute requires the 
jury which determines the guilt of a defendant to also determine 
his sentence, there is no need for this Court to review 
petitioner1s claim of the denial of due process and equal 
protection in this regard.

-9-



B. THE TEST OF EXCLUSION UTILIZED BY THE TRIAL 
COURT WAS IN ACCORDANCE WITH THE CONSTI­
TUTIONAL STANDARDS AS ENUNCIATED IN 
WITHERSPOON V. ILLINOIS, 391 U.S. 510 (1968).

Petitioner argues that the trial court erred in excluding 
two prospective jurors, having expressed conscientious opposition 
to capital punishment, from the jury that convicted her and 
imposed the death penalty. Two jurors were excused because 
of their opposition the death penalty. In response to questions 
by the district attorney, each of these prospective jurors 
answered that they would vote against the recommendation of 
the death penalty without regard to the facts and circumstances 
being presented during the trial, in effect stating that uncer 
no circumstances could they vote for the imposition of the 
death penalty. Having expressed this "unconditional reserva­
tion" to the imposition of the death penalty, these two 
jurors were excused. (T. 35-37).

Although petitioner contends that the principles of 
Witherspoon v. Illinois, 391 U.S. 510 (1968), were not
correctly applied during her trial, as previously stated, 
the Georgia Supreme Court in its consideration of this 
case on direct appeal, specifically found that the jurors 
were properly excluded under the standards as set forth in 
Witherspoon, supra. The Court stated that the jurors who 
were excluded because of their conscientious scruples against 
the death penalty, had not merely voiced "general objections" 
to the death penalty, as were found to be insufficient for 
the exclusion of a juror under Witherspoon, supra,

-10-



but instead that the voir dire revealed an expression by these 
two prospective jurors of "an unconditional reservation to the 
imposition of the death penalty." (Emphasis added). Code of 
Georgia, § 59-806 (4) (1933) provides that inquiry as to opposi­
tion to capital punishment should be propounded on the juror's 
voir dire. Thus, jury panels are aware, before they hear any 
evidence in any particular capital case, of the magnitude of 
punishment that may be suffered by the defendant. "Each of 
the prospective jurors excused makes it unmistakably clear 
that he would vote against the death penalty regardless of what 
transpires at trial." Gibson v. State, 236 Ga. 874, 877-878 
(1976).

The trial judge was satisfied that under Witherspoon v.
11 linois, supra, the jury was properly excused for cause. The 
Supreme Court of Georgia found that this expression of an 
unconditional reservation to the imposition of the death penalty 
meets the requirements of Witherspoon that the jurors' scruples 
against the death penalty in all circumstances be "unmistakably 
clear." Therefore, there is no further need for this Court 
to review the questions presented by petitioner. The State 
trial court and the State Supreme Court applying appropriate 
principles have previously found petitoner's contentions to 
be without merit. Under the facts of this case, there is no 
basis upon which to question the conclusion reached by the 
Supreme Court of Georgia. Thus, there is no need for further 
review of a legally sound opinion.

-11-



c. THE EXCLUSION OF PROSPECTIVE JURORS WITH

CONSCIENTIOUS SCRUPLES AGAINST CAPITAL 
PUNISHMENT DID NOT DEPRIVE PETITIONER 
OF HER RIGHT TO A REPRESENTATIVE JURY.

Relying partially upon Duncan v. Louisiana, 391 U.S.
145 (1968), petitioner argues that the exclusion of prospec­
tive jurors expressing unalterable opposition to capital punish­
ment deprived her of her Fifth Amendment right to a jury which 
is representative of the community. Respondent asserts that 
the Sixth Amendment does not mandate the inclusion of those 
unalterably opposed to capital punishment on all juries that 
may be asked to impose the supreme penalty on a defendant.
As to the issue of punishment, such juror's would necessarily 
bring into question the impartiality of the jury panel.
Witherspoon v. Illinois, supra, 391 U.S. at 530 (separate opinion 
of Douglas, J.).

Respondent addresses the question as to whether the exclusion 
of those unalterably opposed to capital punishment from a jury that 
is required to determine guilt, as well as to fix punishment, de­
prives a defendant of a "representative11 Fifth Amendment jury.
The record presented by the petitioner reveals no factual information 
that could assist the Court in determining whether or not petitioner's 
jury was drawn from a "representative'cross-section of the community", 
merely stating that "less than half of the people in the United 
States believe in the death penalty", is not sufficient to demonstrate 
that petitioner's jury was not drawn from a representative cross- 
section of the community.

-12-



Even if a defendant was successful in demonstrating that 
the jury, arguably neutral with respect to the penalty, was 
biased in favor of the prosecution with respect to guilt,

" . . .  The question would then arise %
whether the State interest in sub­
mitting the penalty issue to a jury 
capable of imposing capital punishment 
may be vindicated at the expense of 
the defendant's interest in a com­
pletely fair determination of guilt 
or innocence —  given the possibility 
of accomodating both interests by means 
of a bifurcated trial, using one jury 
to decide guilt and another to fix 
punishment." Witherspoon v. Illinois, 
supra, 391 U.S. at 520 (N. 18.).

Petitoner has made no effort to demonstrate that her 
jury was guilt-biased. Her effort to set aside her conviction 
on the basis of the death qualification of the jury must fail 
for the same reason that the court rejected the petitoner's 
contentions in Witherspoon. Id. at 516-518.

-13-



D. QUESTIONING PROSPECTIVE JURORS CONCERNING 
THEIR ATTITUDES TOWARDS THE DEATH PENALTY 
DID NOT VIOLATE PETITIONER'S RIGHTS UNDER 
THE'SIXTH AND FOURTEENTH AMENDMENTS TO 
THE CONSTITUTION.

This assertion by the petitoner is an assertion discussed 
in the previous section, attempting to show that the jury was 
guilt-biased. However, petitioner has not been successful in 
presenting to this court any supporting data for the allegation 
that her jury was guilt-biased. As previously discussed, 
separate juries do not, in fact, adjudicate guilt and fix 
punishment. The jury which convicted Ms. Machetti also 
recommended the death penalty. Therefore, a failure to question 
prospective jurors as to their attitudes towards the death 
penalty would violate traditional notions of a "fair trial" , 
which pre-supposes tha.t the jury determining both guilt or 
innocence and setting the punishment, will be an impartial one. 
Therefore, there is no need for review by this Court of this 
question.

-14-



II. the imposition of the death penalty under
THE GEORGIA CAPITAL PUNISHMENT STATUTE 
WOULD NOT BE VIOLATIVE OF PETITIONER'S 
RIGHTS UNDER THE EIGHTH OR FOURTEENTH 
AMENDMENTS TO THE UNITED STATES CONSTI­
TUTION.

Petitioner has challenged the validity of her conviction 
under the Georgia capital punishment statute and its application. 
Although petitioner has made numerous assertions in support of 
her contentions, the respondent submits that this Court's 
decision in Gregg v. Georgia, No. 74-6257, decided July 2,
19 76 , in v/hich the Georgia capital punishment statute was 
upheld by this Court, should be relied upon to prevent further 
review of a question recently determined.

■̂n Gregg, supra, this Court received extensively the Georgia 
statutory scheme for the imposition of the death penalty. This 
Court concluded that, "In sum, we cannot say that the judgment of 
the Georgia Legislature that capital punishment may be necessary 
in some cases is clearly wrong. . . .  We hold that the death 
penalty is not a form of punishment that may never be imposed, 
regardless of the circumstances of the offense, regardless of 
the character of the offender, and regardless of the procedure 
followed in reaching the decision to impose it." This Court 
especially relied upon the Georgia statute's provisions that 
the jury must find at least one statutory aggravating circumstance 
before it may impose the death sentence and that such circum­
stance must be specified. Further, this Court also emphasized 
the expedited direct review by the Supreme Court of Georgia 
of the appropriateness of imposing the sentence of death in

-15-



the particular case, and if the Court affirms a death sentence, 
it is required to make reference in its decision to similar 
cases which have been taken into consideration. The Georgia 
Supreme Court affirmed the imposition of the death penalty in 
petitioner's case, and specifically referred to similar cases 
which had been considered by the Court. Therefore, the proper 
statutory procedure was followed in petitoner's case.

As the statutory scheme which was upheld by this Court 
in Gregg v. Georgia, supra, was followed in petitioner's case, 
there is no necessity for a review of petitoner's case in order 
to determine whether or not her constitutional rights have been 
violated.

III. CONSOLIDATION OF PETITIONER'S CASE WITH THAT 
OF HER HUSBAND ON APPEAL TO THE SUPREME COURT 
OF GEORGIA DID NOT VIOLATE PETITIONER'S RIGHTS 
UNDER THE FIFTH OR FOURTEENTH AMENDMENTS TO 
THE U. S. CONSTITUTION, AS THESE CASES WERE

\

SEPARATELY DOCKETED AND ALL ENUMERATIONS OF 
ERROR CONSIDERED.

Petitoner, Rebecca Machetti, and her husband, Tony 
Machetti, were indicted by the same grand jury, each on two 
counts of murder. However, both petitioner and her husband 
received individual trials on these charges. The Supreme 
Court of Georgia, in its opinion deciding the individual 
appeals of petitoner and her husband, merely wrote the opinion 
deciding these appeals together. Smith v. State, 236 Ga. 12,
222 S.E.2d 308 (1976). Reference to the Georgia Supreme Court's 
opinion shows immediately in the style of the case that the 
appeals of petitoner and her husband were separately docketed 
and there is even a notation that this is an opinion deciding 
"two cases." This was obviously an exercise of judicial economy, 
as the same underlying facts were present in both the case of



petitioner and her husband, and they were appealing from con­
victions of the same offenses and also identical sentences.
It further appears from the opinion of the Georgia Supreme 
Court that although the opinions were combined, the cases 
were considered separately. For example, the Court noted 
that Enumeration of Error No. 11 was made only by Tony 
Machetti. In the portion of the opinion concerning sentence 
review, the Court stated what each jury had decided in the 
separate trials of petitioner and her husband.

Therefore, it appearing that the cases of petitoner and 
her husband being identical as to the underlying facts, and 
raising the same issues on appeal to the Georgia Supreme Court, 
the rendering of an opinion concerning these two cases, which 
were considered separately, was merely an exercise in judicial 
efficiency. This claim is not the type which of necessity 
should be reviewed by this Court.

-17-



TESTIMONY OF POLICE INVESTIGATORS, WOOTERS 
AND •BIELTZ, CONCERNING THEIR INTERVIEWS 
WITH THE PETITIONER AS THIS WAS NOT 
VIOLATIVE OF PETITONER1S FIFTH OR 
SIXTH AMENDMENT RIGHTS UNDER THE 
CONSTITUTION.

Petitoner asserts that the trial court erred in admitting 
the testimony of A. E. Woofers and Lawrence Bieltz, two 
Florida law enforcement officers, concerning their inter­
views with petitoner because their conversations with her 
were not preceded by advising her of her constitutional 
rights. Petitoner acknowledges that she was not "in custody" 
of the authorities at the time of her interviews, but argues 
that the Bibb County investigation had focused on her, and 
thus, without the appropriate warning, her testimony should 
have been excluded.

Petitoner raised this objection on direct appeal to the 
Georgia Supreme Court. Testimony produced at petitoner's trial 
revealed that appellant was interviewed on two occasions by 
Florida authorities, and also spoke with Bibb County Deputy 
Sheriff Wilkes. On neither occasion was she-advised of 
her constitutional rights as described in the decision of Miranda 
v. Arizona, 384 U.S. 486 (1966). However, petitioner made no
incriminating statements during these three interviews, merely 
relating information to the officers to which she later testi­
fied at trial. Initially petitioner telephoned Deputy Wilkes

IV. THE TRIAL COURT PROPERLY ADMITTED THE

-18-



at his reauest. During this conversation, petitioner detailed 
her activities for the Labor Day weekend, and related that 
Machetti had been on a fishing trip. Petitioner speculated 
that her former husband's death was related either to his 
traffic in drugs or his homosexual involvement. Appellant 
made no mention of John Maree. (T. 600-608) .

Subsequently, Detective Wooters, with the North Miami 
Police Department, spoke with petitioner at her home on 
September 2, 1974, at the request of Bibb County authorities. 
Detective hooters stated that petitioner was interviewed only 
for purposes of establishing her address and the whereabouts 
of herself and Machetti on the day of the murders. Petitioner 
made no incriminating statements to Detective Wooters, she 
merely related her activities during the Labor Day weekend, 
and that Machetti had been on a fishing trip in Florida on 
that weekend.

Petitioner was subsequently interviewed at her home on 
September 30, 1974, by the Florida Department of Criminal 
Law Enforcement. Officer Bieltz, who conducted this interview, 
testified that petitioner was advised of the purpose of the 
interview, voluntarily submitted to the questioning, and was 
cooperative. Petitioner again gave no incriminating statements 
to the authorities and repeated her earlier statements. (T. 394-95.
Arrest warrants were not obtained until October 15, 1974, two 
weeks after petiti°ner interview with Bieltz.

-19-



Court found this contention to beThe Georgia Supreme 
without merit. The Court found that petitioner "made no 
incriminating statements during the three interviews, she 
was not in custody, the investigation had not focused on her, 
her statements consisted of possible reasons for her ex-husband s 
death, and that her husband, appellant Tony Machetti, had been 
on a fishing trip on the weekend of the crime." Smith v. State, 
236 Ga. 12, 18 (1976). On the basis of this finding, the 
Court stated that, "The evidence in connection with the inter­
views in this case is outside the parameters of 'custodial 
interrogation' delineated by the four criteria spelled out in 
Brown v. 3eto, 46S F.2d 1284, 1236 (5th Cj.r. 19/2) , in that 
at •* ’ i e time of the interviews: (1) the police.did not have
probable cause to arrest; (2) the subjective intent of police 
was to locate possible persons involved; (3) the appellants 
did not appear to believe themselves to be in custody and 
subjected to interrogation; and (4) the investigation had not 
at that time focused on the appellants as someone the State 
planned to indict." Smith, supra, at 19.

The general rule in favor of a case-by-case analysis of 
the precise contours of "custodial interrogation" is guided by 
four criteria propounded by the Fifth Circuit in the case of 
Brown v. Beto, 468 F.2d 1284, 1286 (5th Cir. 1972). This case 
was the one on which the Georgia Supreme Court relied in its 
opinion.

-20-



In Brown, the Court was careful to note that none of the
four factors were alone determinative of the issue of custody. 
168 F.2d at 1286. That the focus factor alone is not determina­
tive was recently emphasized by the Fifth Circuit. United 
States v. Carrollo, 507 F.2d 50, 52 (5th Cir. 1975). When an 
individual is at liberty to depart at any time, and to withhold 
whatever information he wishes, the Miranda warnings are not 
required. United States v. Mueller, 510 F.2d 1116, 1118 (5th 
dir., April 7, 1975). Thus, since the time at which it becomes 
necessary for the law enforcement officials to advise persons 
of their constitutional rights is when they are placed "in 
custody", and the petitoner in this case was not in custody 
at the time she was interviewed by these law enforcement 
officials, there was no need for her to be advised of her 
constitutional rrgnts. Therefore, since the Georgia Supreme 
Court correctly determined that the testimony by these law 
enforcement officials was admissible since petitioner was not
in custody at the time she was interviewed, there is no need

\for further review of this issue by this Court.

✓

-21-



V. THE STATES ELICITATION AT TRIAL OF THE
FACT THAT PETITIONER HAD NOT DISCLOSED
EXCULPATORY EVIDENCE DURING POLICE
INTERVIEWS DID NOT VIOLATE PJ'.TITONER' S *
RIGHT TO DUE PROCESS, AS PETITONER WAS 
NOT "IN CUSTODY" AT THE TIME OF THESE 
INTERVIEWS AND HER "SILENCE" WAS PRIOR 
TO BEING ADVISED OF HER MIRANDA RIGHTS.

Petitioner asserts that it was error for the State to 
be allowed to elicit the fact that the petitioner had not 
disclosed exculpatory evidence when she was first interrogated 
by the police. Essentially, petitioner is contending that her 
"silence" during an interview with police officers, was used 
against her at trial. The main case which petitcner cites in 
support of this contention is Doyle v. Ohio, U. S. ,
49 L.Ed.2d 31 (1976). Petitioner asserts that Doyle v. Ohio, 
supzra, stands for the proposition that "Use of the defendant's 
post-arrest silence in this manner violates due process", 
because petidoner has a constitutional right to remain silent 
in the face of police interrogation. However, as discussed con­
cerning petitioner's previous contention concerning the ad­
missibility of the law enforcement officers' testimony, it was 
established that anything which petitioner stated or did not 
state during the police interview, was not subject to the 
requirement of Miranda v. Arizona, 384 U.S. 436 (1966), or 
other cases interpreting Miranda, when there is no "in-custody 
interrogation". Again, petitioner was not "in custody" during 
the time of the police interviews, and therefore could not 
invoke a constitutional right to remain silent in the face 
of police interrogation. The statements which petitioner made 
on these occasions were made in a voluntary manner on her part.

-22-



Doyle v. Ohio, supra, also dealt with "silence in the 
wake" of the Miranda warnings, which was interpreted as the 
arrestee's exercise of these Miranda rights. However, the 
"silence" of petitioner or her failure to disclose certain 
exculpatory evidence during these police interviews, was 
not "in the wake" of being advised of her Miranda warnings, 
but instead was before these warnings were given. Therefore, 
Doyle v. Ohio, supra, is inapplicable to the fact of petitioner's 
case.

There being no "in custody" interrogation of petitioner, 
and the failure of petitioner to disclose exculpatory evidence 
during interviews with the police, being unable to be con­
strued as silence in the wake of being advised of her Miranda 
warnings, there is no issue presented for review by this Court.

-23-



CONCLUSION
Cased upon the i.oregoing, it is rcpectively submitted 

that this petition for a writ of certiorari should be denied.

Respectfully submitted,
ARTHUR K. BOLTON 
Attorney General

ROBERT S. STUBBS, II
Chief Deputy Attorney General

RICHARD
Deputy Attorney General

JOH:S.C. WALDEN " ~
Senior Assistant Attorney General

SUSAN V. BOLEYN 7 /

Please Serve:
SUSAN V. BOLEYN
132 State Judicial Bldg. 
40 Capitol Square, S. W. 
Atlanta, Georgia 30334 (404) 656-6344



CERTIFICATE OF SERVICE

I, JOHN C. WALDEN, Attorney of Record for the Respondent, 
and a member of the Bar of the Supreme Court of the United 
States, hereby certify that in accordance with the rules of 
the Supreme Court of the United States, I have this day served 
a true and correct copy of this Brief for Respondent in 
Opposition upon the Petitioner's attorney by depositing three
copies of same in the United States mail, with proper address 
and adequate postage to:

MARY ANN B. OAKLEY 
15 Peachtree Street, N.E. Suite 902
Atlanta, Georgia 30303

Th i s of October, 19 7 6 .