Biggers v. Tennessee Petition for Writ of Certiorari to the Supreme Court of Tennessee

    I n  t h e

ir tjin w  (flmtrt nf %  InitTii States
October Term, 1966 

No.............

A e c h ie  N a t h a n ie l  B iggees,
Petitioner,

S tate of T e n n e s s e e .

PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF TENNESSEE

J ack  Greenberg  
M ic h a e l  M e l t sn e r

10 Columbus Circle 
New York, New York

A n t h o n y  G . A msterdam  
3100 Chestnut Street 
Philadelphia, Pa.

A von X. W illia m s  
Z. A lexander  L ooby 

Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioner
J o h n  P. H owland

500 East 73rd Street 
New York, New York 

Of Counsel



I N D E X

PAGE

Citation to Opinion Below ............... -.........................  1

Jurisdiction ...................................................................  1

Question Presented ......................... -............................  2

Constitutional Provisions Involved ............................ 2

Statement .......................................................................... 2

How the Federal Questions Were Raised and Decided 
Below ...............................................    4

R easons fob  Gba n tin g  t h e  W b i t :

I. Petitioner Was Denied His Rights Under the 
Due Process Clause of the Fourteenth Amend­
ment and the Fifth and Sixth Amendments to 
the United States Constitution Under Circum­
stances Similar to Those in Conflicting Court of 
Appeals Cases Granted Certiorari and Presently 
Pending Before This Court................................  6

II. The Facts in This Case Show That Petitioner 
Was Denied Due Process of Law and the Pro­
tection of the Fifth and Sixth Amendments to 
the Constitution of the United States .............  8

C on clu sio n  .....-......... -.............-................. -............................ -.........  14

A ppe n d ix

Opinion of Supreme Court of Tennessee ................... la
Denial of Rehearing ...............—............................  6a



ii

T able of Cases

page

Carroll v. State, 212 Term. 464, 370 S.W.2d 523 ......  4

DeLuna v. United States, 308 F.2d 140 (5th. Cir. 
1962) ................... ..................... .................... .............  12

Escobedo v. Illinois, 378 U.S. 478 (1964) .................  12

Holt v. United States, 218 U.S. 245 (1910) .................  11

King v. State, 210 Tenn. 150, 357 S.W.2d 42 .............. 4

Miranda v. Arizona, 384 U.S. 436 (1966)  .......... ...... 11

Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966) ......  13

Schmerber v. California, 384 U.S. 757 (1966) ..........  11
Shelley v. Kraemer, 334 U.S. 1 (1948) ........................  8

Trustees of Monroe Avenue Church of Christ v. Per­
kins, 334 U.S. 813 (1948) ..........................................  8

Wade v. United States, 358 F.2d 557 (5th Cir. 1966), 
cert, granted 35 U.S.L. Week 3124 (Oct, 10, 1966) .... 7, 8 

Watts v. Indiana, 338 U.S. 49 (1949) ........................ 11

United States ex rel. Stovall v. Denno, 355 F.2d 731 
(2nd Cir. 1966) cert, granted 34 U.S.L. Week 3429 
(June 20, 1966) ....................................... ................. 7} 8

S tatu tes  I nvolved

28 U.S.C. §1257(3) ................. .......................................  1

Tennessee Code Annotated, §39-3701 (1955) ..............  4



Ill

O t h e r  A u t h o r it ie s

PAGE

Borehard, Convicting the Innocent (1932) ................ . 9
Frank, Not Guilty (1957) ..................... ..... ........... . 9
Gerber and Schroeder ed., Criminal Investigation and 

Interrogation (1962) ....................... ........................... 9
2 Hawkins, Pleas of the Crown (8th ed. 1824) ........  11
Jackson ed., Criminal Investigation (5th ed. 1962) ......  9
8 Wigmore, Evidence (McNaughton rev, 1961) ..........  10



I n  t h e

Crntrt at %  Imtefc States
October Term, 1966 

No.............

A r c h ie  N a t h a n ie l  B iggers, 

—v.—
Petitioner,

S tate oe T e n n e s s e e .

PETITION FOR WRIT OF CERTIORARI 
TO THE SUPREME COURT OF TENNESSEE

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Tennessee entered 
in the above entitled cause January 12, 1967, rehearing of 
which was denied March 1, 1967.

Citation to Opinion Below

The opinion of the Supreme Court of Tennessee is 
unreported and is printed in the appendix hereto, infra, 
p. la. The opinion of the Supreme Court denying re­
hearing is unreported and appears in the appendix hereto, 
infra, p. 6a.

Jurisdiction

The judgment of the Supreme Court of Tennessee was 
entered on January 12, 1967, infra, p. la. Rehearing 
was denied March 1, 1967, infra, p. 6a. The jurisdiction 
of this Court is invoked pursuant to 28 U.S.C. §1257(3),



2

petitioner having asserted below and asserting here dep­
rivation of rights secured by the Constitution of the United 
States.

Question Presented

The petitioner, a 16 year-old Negro boy, was compelled 
by the police, while alone in their custody at the police 
station, to speak the words spoken by a rapist during the 
offense almost eight months earlier for voice identification 
by the prosecutrix.

Was the denial of petitioner’s right to personal dignity 
and integrity by the police, and the failure to give him 
benefit of counsel, provide him with a line-up, or with any 
other means to assure an objective, impartial identification 
of his voice by the prosecutrix a violation of petitioner’s 
Fifth, Sixth and Fourteenth Amendment rights.

Constitutional Provisions Involved

This petition involves the Fifth, Sixth and Fourteenth 
Amendments to the Constitution of the United States.

Statement

Early on the morning of August 17, 1965, Archie 
Nathaniel Biggers, a Negro boy of 16 years, was arrested 
by the police and allegedly identified by a woman as the 
man who had attempted to rape her earlier that night 
(Tr. 70). The story appeared on the first page of the 
only morning newspaper in Nashville, The Nashville Ten­
nessean, describing the defendant as “a burly 16 year-old 
Negro youth.” Petitioner has never been tried on this 
charge.



3

Later the same day the police went to the home of Mrs. 
Margaret Beamer, the Negro prosecutrix, and requested 
her to accompany them to the police station to “look at a 
suspect” (Tr. 27-28, 57, 106, 109-110). Mrs. Beamer had 
been raped on the night of January 22, 1965, almost eight 
months earlier (Tr. 4-7, 20, 85-88). An intruder had en­
tered her home and grabbed her in an unlit hallway 
(Tr. 10). Hearing her mother’s screams, Mrs. Beamer’s 
daughter ran into the hallway. She approached within 
a foot of the rapist, whose face was turned toward her, 
before being ordered by her mother to go back to her 
bedroom (Tr. 129-132). The intruder then took Mrs. 
Beamer to a patch of woods where he raped her (Tr. 4-7). 
Neither Mrs. Beamer (Tr. 13) nor her daughter (Tr. 141) 
could describe or identify the rapist. Although she once 
identified a police photograph of a man as “having features” 
like the rapist (Tr. 14a), Mrs. Beamer’s case lay dormant 
for almost eight months for lack of clues.

When Mrs. Beamer saw Archie Biggers for the first time 
he was being held at the police station in the custody 
of five police officers (Tr. 112). Neither his parents nor rela­
tives were present, nor had they been notified of the iden­
tification (Tr. 103-104, 111, 155). He had no lawyer. The 
police brought petitioner in Mrs. Beamer’s presence and 
required him to repeat the words spoken by the rapist 
at the time of the offense: “Shut up, or I ’ll kill you” 
(Tr. 6, 7, 17, 47, 93, 108, 112-113, 156). From the sound 
of these few words—the record does not reveal that the 
petitioner said anything else (Tr. 17, 112-113)—spoken 
eight months earlier during events which lasted from 15 
to 30 minutes at most from the time that the prosecutrix 
left her house until she returned (Tr. 30, 140-141), Mrs. 
Beamer identified Archie Biggers as the man who had 
raped her (Tr. 19). It was the same voice she was later



4

to describe at the trial as that of an “immature youth” 
who “talked soft” in a “medium-pitched” voice (Tr. 17).

The identification of the petitioner by his voice, general 
size, and skin and hair texture was the only evidence of 
petitioner’s guilt1 (Tr. 17-19). Petitioner testified in his 
behalf and emphatically denied committing the act charged 
(Tr. 152, 154, 156). His stepfather, mother and seven 
neighbors took the stand in his support as character 
witnesses and testified to his excellent reputation for 
truth, veracity, and good character (Tr. 185-186, 204-205, 
210-212, 217-218, 224-226, 233-234, 242-245, 255-257).

On the basis of Mrs. Beamer’s identification evidence the 
jury found Archie Biggers guilty of rape. He was sen­
tenced to the State Vocational Training School for Boys 
for twenty years (Tr. 292).

How the Federal Questions Were 
Raised and Decided Below

The question of whether it was a violation of peti­
tioner’s Fourteenth Amendment rights to compel him to 
speak the words spoken by the rapist during the offense 
for voice identification, without benefit of counsel or mini­
mal procedural protections, was raised for the first time 
in petitioner’s assignment of error and brief on appeal 
to the Supreme Court of Tennessee filed November 7, 1966 
(Ass. of Error and Br. 7, 14). Petitioner requested the 
Supreme Court of Tennessee to waive its Rule 14(5),2

1 In Tennessee it is not mandatory that testimony of a violated female 
be corroborated. Tennessee Code Annotated, §39-3701 (1955); Carroll v. 
State, 212 Tenn. 464, 370 S.W.2d 523; King v. State, 210 Tenn. 150, 
357 S.W.2d 42.

2 Rule 14(5) provides:
Motions for new trial and in arrest of judgment essential, when.—  
Error in the admission or exclusion of testimony, in charging a jury,



5

and consider the question, although the error assigned 
had not been made a basis for a motion for new trial.

The pertinent assignment of error was the following:
5. The conviction of the defendant solely on the basis 
of an identification by prosecutrix predicated on his 
being required to make statements reenacting the cir­
cumstances of the offense while in custody without 
benefit of counsel or warning of his right to have an 
attorney with him and to remain silent, is unconsti­
tutional and void as violating rights of defendant 
secured by the Fifth and Fourteenth Amendments to 
the Constitution of the United States in that said 
speech by defendant was, in effect, testimony against 
himself involuntarily given by a juvenile under cir­
cumstances so fundamentally unfair and oppressive 
as to invalidate all evidence flowing therefrom under 
said constitutional circumstances (Ass. of Error and 
Br. 7-8, 14-16).

The Supreme Court of Tennessee waived Rule 14(5) 
and decided the federal question raised by petitioner’s 
assignment of error 5, renumbered 4 by the court, infra,

or refusing further instructions, misconduct of jurors, parties or 
counsel, or other action occurring or committed on the trial of the 
case, civil or criminal, or other grounds upon which a new trial is 
sought, will not constitute a ground for reversal, and a new trial, 
unless it affirmatively appears that the same was specifically stated 
in the motion made for a new trial in the lower court, and decided 
adversely to the plaintiff in error, but will be treated as waived, in 
all eases in which motions for a new trial are permitted; nor will any 
supposed matter in arrest of judgment be considered unless it appears 
that the same was specifically stated in a motion, seasonably made 
in the trial court, for that purpose, and held insufficient. This is a 
court of appeals and errors, and its jurisdiction can only be exercised 
upon questions and issues tried and adjudged by inferior courts, 
the burden being upon the appellant, or plaintiff in error, to show 
the adjudication, and the error therein, of which he complains.



6

pp. 4a, 5a. The court held that the voice identification test 
had not violated petitioner’s constitutional rights against 
self-incrimination because “the only thing he gave was 
the sound of his voice to be used, along with other things, 
solely for the purpose of identification” infra, p. 5a.

In his petition for rehearing to the Supreme Court of 
Tennessee, petitioner renewed the allegations made in his 
fifth assignment of error. The Supreme Court of Ten­
nessee denied the petition, infra, p. 6a, on March 1, 1967.

REASONS FOR GRANTING THE WRIT

I.

Petitioner Was Denied His Rights Under the Due 
Process Clause of the Fourteenth Amendment and the 
Fifth and Sixth Amendments to the United States Con­
stitution Under Circumstances Similar to Those in Con­
flicting Court of Appeals Cases Granted Certiorari and 
Presently Pending Before This Court.

The facts in this case are starkly simple, but they raise 
a critical question of the fairness and impartiality of 
police identification practices. They reveal that Archie 
Biggers was denied his right to a fair trial by police 
practices which denied him elementary Fourteenth Amend­
ment protections.

The only evidence against petitioner at trial was the 
identification made by the prosecutrix, Mrs. Margaret 
Beamer, that Archie Biggers was the man who had raped 
her. Biggers, a 16 year old Negro was arrested early 
on the morning of August 17, 1965 and charged with the 
attempted rape of another woman (Tr. 70). Later the 
same day, the police brought Mrs. Beamer, who had been



7

raped on the night of January 22, 1965, almost eight 
months earlier (Tr. 4-7, 20, 85-88) to “look at a suspect” 
(Tr. 27-28, 57, 106, 109-110). Unable to describe or identify 
her assailant (Tr. 13) her case had remained without clues. 
Asked to identify Biggers if she could, the first view she 
had of the petitioner was of him alone in the custody 
and presence of five police officers (Tr. 112). He had no 
lawyer. The police then required him to speak the exact 
words of the rapist spoken during the offense (Tr. 6, 7, 
17, 47, 93, 108, 112-113, 156), on the basis of which she 
identified petitioner as the rapist. These were the cir­
cumstances surrounding the identification by the prosecu­
trix.

The facts in this case raise the issue present in con­
flicting Second and Fifth Circuit cases which this Court 
has granted certiorari to determine. United States ex rel. 
Stovall v. Denno, 355 F.2d 731 (2nd Cir. 1966), cert, 
granted 34 U.S.L. Week 3429 (June 20, 1966); Wade v. 
United States, 358 F.2d 557 (5th Cir. 1966), cert, granted 
35 U.S.L. Week 3124 (Oct. 10, 1966). The Second Circuit, 
sitting en banc, held that the defendant’s Fifth, Sixth and 
Fourteenth Amendment rights were not violated when he 
was taken to the victim’s hospital room for identification 
without the benefit of a line-up or counsel, even though 
arraignment had been postponed to allow him to obtain 
counsel. The Fifth Circuit, in Wade v. United States, 
supra, specifically adopted the view of the dissenting judges 
in United States ex rel. Stovall v. Denno, supra. It ex­
cluded testimony of the line-up on the ground that the 
line-up had violated the defendant’s constitutional rights 
because two witnesses had seen him in the custody of the 
police shortly before the line-up, and defendant’s counsel 
had not been notified and was not present at the line-up. 
Archie Biggers, like Wade, was denied elemental protec­
tions against suggestion and the right to counsel during



8

the test to identify his voice. Indeed, the circumstances 
of Biggers’ identification were less conducive to impar­
tiality than those in United States v. Wade, supra, and 
the arguable necessity for speed in identification and 
difficulty in arranging a line-up involved in United States 
ex rel. Denno, supra, is not present in this case.

As the question presented in this case raises issues 
similar to issues already pending before this Court, cer­
tiorari is appropriate here. Compare Shelley v. Kraemer, 
334 U.S. 1 (1948) with Trustees of Monroe Avenue Church 
of Christ v. Perkins, 334 U.S. 813 (1948).

II.

The Facts in This Case Show That Petitioner Was 
Denied Due Process of Law and the Protection of the 
Fifth and Sixth Amendments to the Constitution of the 
United States.

The voice identification of Archie Biggers was made in 
a manner which could scarcely have been less conducive 
to an impartial judgment. The sudden arrival of the 
police to take her to “look at a suspect” (Tr. 27-28, 57, 
106, 109-110) the first view of the petitioner in custody of 
five policemen (Tr. 112) and the repetition of the rapist’s 
words (Tr. 6, 7, 17, 47, 93, 108, 112-113, 156) merged to 
create an atmosphere charged with suggestion that this 
man was the rapist. Time, almost eight months, inevitably 
dulls recollection, and increases the temptation to succumb 
to suggestion.

The danger which is obvious and inherent in any iden­
tification process involving sensory perception by a wit­
ness is that extraneous factors may intervene to color and 
prejudice what should be an objective decision. That sen-



9

sory perception, at very best, is not completely reliable 
is clear from the documentation of supposedly “irrefutable” 
identifications later proved incorrect. See Borchard, Con­
victing the Innocent, p. xii (1932); Frank, Not Guilty, 
p. 31 (1957).

To negate inference or suggestion from an identification 
proceeding, a line-up is generally regarded as essential to 
provide a mode of comparison by police authorities. See 
Criminal Investigation and Interrogation, Gerber and 
Scliroeder ed., §22.20 (1962); Criminal Investigation, Jack- 
son ed. (5th ed. 1962) at pp. 41-42. The failure to provide 
Archie Biggers with the protection of a line-up in a rape 
case, considering his youth, the eight month period since 
the rape and other circumstances is inexcusable. There 
was no reason for the lack of a line-up, and every reason 
to provide one. As Archie Biggers was being held in 
police custody for an unrelated charge, this is not a case 
of street identification immediately after arrest, nor even 
a case where it was physically impossible to hold a line-up. 
Nor was there need to identify Archie Biggers quickly. 
Mrs. Beamer had been raped eight months earlier and 
the time necessary to arrange a line-up certainly would 
not have affected her identification. Indeed, the time lapse, 
well known to the police, should have been sufficient to 
mandate a line-up to police conscientiously seeking an im­
partial, dispassionate identification.

Presented before Mrs. Beamer without a line-up, and in 
the custody of five officers, Archie Biggers was required 
to speak the words spoken by the rapist. He said nothing 
else. Although this proceeding was supposedly held to 
test the tone and timbre of petitioner’s voice, and upheld 
by the Supreme Court of Tennessee on this basis, infra, 
p. 5a, it would have been an extraordinary feat if the 
prosecutrix could have ignored the particular words spoken



10

and concentrated solely on the sound of the voice making 
them. Moreover, there was no reason to require the peti­
tioner to speak the rapist’s words. Mrs. Beamer had not 
indicated that the rapist spoke any word or combination 
of words in a distinctive or unusual manner which would 
aid identification. This fact was emphasized at trial when 
she could only describe the voice as “medium-pitched,” 
“immature” and “soft” (Tr. 17), The use of the rapist’s 
words were an unwarranted suggestion that the speaker 
was the rapist.

Identification, by whatever method, is similar to and has 
much the same legal effect as self-incrimination. When, as 
here, identification procedures cease to be objective because 
the person being identified is required to do something 
which improperly suggests that he and the offender are 
the same person, the due process standard of fairness, in­
cluding the right against self-incrimination, is violated. 
The suggestion inherent in the use of the rapist’s words 
is alone, and in combination with the total circumstances 
of the case, a violation of due process.

The test of Biggers’ voice violated his Fifth Amendment 
rights because he was compelled by the police to exercise 
his will to speak. Requiring petitioner to make the posi­
tive act of speaking and forming particular words vio­
lated “the respect a government—state or federal—must 
accord to the dignity and integrity of its citizens. To 
maintain a ‘fair state-individual balance,’ to require the 
government ‘to shoulder the entire load,’ 8 Wigmore, Evi­
dence (McNaughton rev. 1961), 317, to respect the in­
violability of the human personality, our accusatory sys­
tem of criminal justice demands that the government seek­
ing to punish an individual produce the evidence against 
him by its own independent labors, rather than by the 
cruel, simple expedient of compelling it from his own



mouth.” Miranda v. Arizona, 384 U.S. 436, 460 (1966). 
This is a restatement of this Court’s long-held view that 
“the law will not suffer a prisoner to be made the deluded 
instrument of his own conviction.” Justice Frankfurter in 
Watts v. Indiana, 338 U.S. 49, 54 (1949), quoting from 
2 Hawkins, Pleas of the Crown (46, §34) (8th ed. 1824).

This question is one of first instance before this Court. 
In Holt v. United States, 218 U.S. 245 (1910), the leading- 
case in this Court, Justice Holmes rejected the argument 
that the Fifth Amendment was violated when the accused 
was requested to model a blouse for identification. In 
that case no exercise of the suspect’s will was required 
since the blouse merely rested on his body, and might just 
as well been held up against his body. Justice Holmes 
appears to have recognized the Fifth Amendment’s pro­
tection against the government overbearing an individual’s 
will when he said, “[T]he prohibition of compelling a man 
in a criminal court to be a witness against himself is a 
prohibition against the use of physical or moral compul­
sion to extort communications from him, not an exclusion 
of his body as evidence when it may be material.” (218 
U.S. at pp. 252-253) (emphasis supplied). It is obvious 
that a person cannot be compelled to speak against his 
will without “physical or moral compulsion.”

More recently, this Court held in Schmerber v. Cali­
fornia, 384 U.S. 757 (1966) that a compulsory blood test 
did not violate the Fifth Amendment. The court expressly 
refused to adopt Professor Wigmore’s view that voice 
identification does not violate the Fifth Amendment (foot­
note 7, 384 U.S. at 763), and all past applications of the 
distinction that the Fifth Amendment bars “testimony” 
but not compulsion making the suspect a source of “real 
or physical evidence” (384 U.S. at 764). The Wigmore 
view that the Fifth Amendment bars only testimonial dis-



12

closures, 8 Wigmore, Evidence, §2263 (McNaughton rev. 
1961), has been strongly challenged. Judge Wisdom, in 
DeLuna v. United States, 308 F.2d 140, 145 (5th Cir. 1962), 
said, “Professor Wigmore was consistently unfriendly to 
the [Fifth Amendment] privilege, especially to its recog­
nition when there was no direct coercion by the govern­
ment and when there was no formal charge to which the 
unanswered questions relate; his writings are an inex­
haustible quarry of quotations for use against the policy 
of the privilege.”

The true scope of the Fifth Amendment protects against 
governmental overbearing of a person’s will. An individual 
has the right to be protected from coercion designed to 
make him do something controlled only by his will, which 
is the heart of a person’s being and the source of his 
individuality. To invade this sanctuary is to destroy the 
well-spring of his integrity and dignity as a human being. 
These are values that the Fifth Amendment seeks to shield 
from governmental intrusion by “physical or moral com­
pulsion.”

Archie Biggers was also denied his right to assistance 
of counsel at the time of his identification, clearly a “critical 
stage” in his case. Escobedo v. Illinois, 378 U.S. 478, 486 
(1964). The police were without a clue to the identity of the 
man who had raped Mrs. Beamer. If she could identify a 
m an  it would certainly form at least the basis for prosecu­
tion. If counsel had been present he could have done several 
things to insure an impartial test. He could have requested 
a line-up, or alternatively some other plan to assure con­
ditions designed to avoid suggestion. If present, counsel 
could have questioned the prosecutrix during identification 
before she had placed herself in the position of making a 
positive identification. It is quite possible that his mere 
presence would have served to counterbalance that of the



13

police, and the inherent suggestiveness of police station 
identification of one in custody. Had counsel been present 
he might have prevented the police from requiring the 
petitioner to speak the words of the rapist, words which 
carried an inherent suggestion of guilt. Or counsel might 
have advised his client to remain silent.

The circumstances of this case, taken separately and in 
combination, establish violations of the due process clause 
of the Fourteenth Amendment, and through it, violations 
of the Fifth and Sixth Amendments. An instructive decision 
is Palmer v. Peyton, 359 F.2d 199 (4th Cir. 1966), where 
the Fourth Circuit, sitting en lane, held without dissent 
that a voice identification test without a line-up, in addi­
tion to police failure to eliminate suggestions of guilt 
before the test, violated due process. We believe the prin­
ciple set forth by Judge Sobeloff in that case is equally 
applicable here:

“In their understandable zeal to secure an identifica­
tion, the police simply destroyed the possibility of an 
objective, impartial judgment by the prosecutrix as 
to whether Palmer’s voice was in fact that of the man 
who had attacked her. Such procedure fails to meet 
‘those canons of decency and fairness’ established as 
part of the fundamental law of the land” (359 F.2d 
at p. 202).



14

CONCLUSION

W h e r e fo r e , p e t i t io n e r  p r a y s  t h a t  th e  p e t i t io n  f o r  w r i t  
o f  c e r t io r a r i  be  g r a n te d  a n d  th e  ju d g m e n t  b e lo w  re v e rs e d .

Respectfully submitted,

J ack  G reenberg

M ic h a e l  M e l t sn e r

10 Columbus Circle 
New York, New York

A n t h o n y  G. A msterdam  
3400 Chestnut Street 
Philadelphia, Pa.

A von N. W illia m s

Z. A lexander  L ooby 
Charlotte at Fourth 
Nashville, Tennessee

Attorneys for Petitioner

J o h n  P. H owland

500 East 73rd Street 
New York, New York 

Of Counsel



APPENDIX



APPENDIX

Opinion of the Supreme Court of Tennessee

(January 12, 1967)
DAVIDSON CRIMINAL

A b c h ie  N a t h a n ie l  B iggebs,

vs.
Plaintiff in Error,

T h e  S tate oe T e n n e s s e e ,

Defendant in Error.

Plaintiff in error, Archie Nathaniel Biggers, herein re­
ferred to as defendant, appeals from a conviction of rape 
for which he has been sentenced to serve twenty years (20) 
years in the State Vocational Training School for Boys. 
Defendant at the time of the crime was sixteen years old.

The victim, Mrs. Margaret B earner, is a married woman 
with five children. On the night of 22 January 1965 she 
was at home in her living room sewing. About 9 :00 p.m. 
she started from her living room to the bed room, which 
rooms are separated by a hall, and as she reached the hall 
defendant, with a butcher knife in his hand, grabbed her 
from behind pulling her to the floor. Her screams brought 
her daughter out of a bedroom into the hall and when 
the daughter saw what was happening she also began to 
scream. Defendant said to Mrs. Beamer, “You tell her to 
shut up or I ’ll kill you both.” Mrs. Beamer ordered the 
daughter back into the bedroom. Defendant escorted Mrs. 
Beamer out the back door of the house to a spot about 
two blocks away where he had sexual relations with her.



Upon completion of the sexual act defendant ran away 
and Mrs. Beamer, returning home, notified police. About 
10:15 p.m. on this night Mrs. Beamer was medically ex­
amined which revealed she had had sexual intercourse 
within three (3) hours prior to that time.

During the early hours of 17 August 1965 defendant 
was arrested for an incident occurring on this night of 
his arrest and immediately taken to Juvenile Aid. Defen­
dant’s mother came to Juvenile Aid and in her presence 
he was fully advised of his constitutional rights. Later 
on in the morning defendant was released to the Police 
Department and Mrs. Beamer, at Police Headquarters, 
identified defendant as the person who raped her on 22 
January 1965.

Defendant as a witness in his own behalf denied any 
knowledge of the crime. Several witnesses testified to his 
good character.

The assignments of error are as follows:
1. The evidence preponderates against the verdict of the 

jury and in favor of the innocence of the accused.
2. The defendant was prejudiced when a witness for 

the State mentioned other offenses allegedly com­
mitted by the defendant for which he was not on 
trial and for which he had not previously been con­
victed.

3. The defendant was prejudiced when the Attorney 
General went outside the evidence in the case while 
making his final argument to the jury.

4. The defendant was required to give evidence against 
himself without having been advised of his consti­
tutional rights.

5. The defendant was prejudiced by the action of the 
Trial Court in refusing to require the State to furnish 
him a transcript of the trial proceedings.



3a

The first assignment of error is predicated upon the 
ground the identity of defendant by the victim was so 
vague, uncertain and unsatisfactory and given under such 
circumstances as not to have any substantial probative 
value. This identification was made based upon the de­
fendant’s size, voice, skin texture and hair. On identifica­
tion the trial judge asked the victim, “All right. Is there 
any doubt in your mind.” To which the victim replied, 
“No, there’s no doubt.” Identification is a question of fact 
for the jury. Stubbs v. State, 216 Tenn. —— , 393 SW2d 
150 (1965). The first assignment of error is overruled.

Under the second assignment of error it is alleged 
Thomas E. Cathey a member of the Metropolitan Police 
Department, as a witness for the State, mentioned other 
offenses allegedly committed by defendant. In defendant’s 
brief these references to other crimes are described as 
being “by inference.” We have carefully examined the 
pages of the transcript cited and find no reference to other 
crimes. The assignment of error is overruled.

Objection is made, under the third assignment of error, 
to the following argument by the Assistant District Attor­
ney General:

“In many parts of our United States, Gentlemen of 
the Jury, a case of this nature would never go to 
trial, and I am sorry to say, its all south of the State 
of Tennessee, and that is because of this fine woman, 
Mrs. Beamer’s environment, economic circumstances, 
and situation, she is not considered in those states to 
have any more rights than a dog and her reproductive 
organs—

The argument above was not completed due to objection 
by defendant which was sustained by the court. The As­
sistant District Attorney General did not pursue this line 
of argument further. Both the defendant and the victim



4a

were members of the Negro race a fact, of course, known 
to the jury. It is insisted, under these circumstances, this 
argument was an appeal to racial prejudice. We agree 
this line of argument was improper, but in light of the 
prompt action of the trial judge we think such was harm­
less error. The third assignment of error is overruled.

Mrs. Beamer and defendant, for the purpose of possible 
identification, were brought together at Police Head­
quarters. Mrs. Beamer requested police have defendant 
repeat in her presence some of the words her assailant 
had used at the time of the rape. The words requested 
were, “Stop or I ’ll kill you.” Defendant, upon instructions 
of police, repeated these words and Mrs. Beamer bases 
her identification of defendant as her assailant partly 
upon his voice. Under the fourth assignment of error it 
is alleged requiring defendant to speak these words for 
the purpose of identification violated his constitutional 
right against self-incrimination.

While the exact problem presented here has not been 
before this Court, yet we think it is controlled by the logic 
and reason used by the court in the case of Barrett v. 
State, 190 Term. 366, 229 SW2d 516 (1950). The Barrett 
case involved a defendant required to wear a hat at the 
time he was being identified. This court, rejecting the 
argument such was a violation of defendant’s privilege 
against self-incrimination, quoted from Wigmore on Evi­
dence, 3 Ed., Section 2265, p. 375 as follows:

“Unless some attempt is made to secure a communica­
tion, written or oral, upon which reliance is to be 
placed as involving his consciousness of the facts 
and the operations of his mind in expressing it, de­
mand made upon him is not a testimonial one.” 190 
Tenn. 372.



5a

A thorough analysis of the problem presented can be 
found in 8 Wigmore on Evidence, sec. 2265, at pp. 386, 396 
(McNaughton, rev. 1961). In analyzing this constitutional 
privilege Dean Wigmore lists eleven (11) principal cate­
gories which he specifically states are not covered. Cate­
gory No. 7 is : “Requiring a suspect to speak for identifica­
tion.” A number of cases are cited for the proposition 
a defendant’s rights are not violated when he is forced to 
speak certain words solely for the purpose of identification. 
See above citation in Wigmore.

In the instant case defendant was told what words to 
say and in repeating them he did not give any factual 
information tending to connect him with the crime; nor 
could any reliance be placed on these words which would 
indicate defendant was conscious of, or had knowledge of, 
any facts of the crime. The only thing he gave was the 
sound of his voice to be used, along with other things, 
solely for the purpose of identification. Under these cir­
cumstances we do not think defendant’s constitutional right 
against self-incrimination was violated. The fourth as­
signment of error is overruled.

Under T.C.A. 40-2037 et seq. the State is required to 
furnish to an indigent defendant a transcript upon request. 
The trial judge determines if the defendant is indigent 
and in this case determined defendant was not indigent. 
We find no error in this determination by the trial judge. 
The fifth assignment of error is overruled.

Judgment affirmed.



6a

Denial of Rehearing by Supreme 
Court of Tennessee

(March 1, 1967) 
DAVIDSON CRIMINAL

A r c h ie  N a t h a n ie l  B iggers,

vs.
Plaintiff in Error,

T h e  S tate of T e n n e s s e e ,

Defendant in Error.

P e t it io n  to R eh ea r

Plaintiff in error has filed a petition to rehear as result 
of our original opinion filed 12 January 1967. Rule 32 of 
this court, inter alia, states:

A rehearing will be refused where no new argument 
is made, and no new authority adduced, and no mate­
rial fact is pointed out as overlooked.

Under this rule this petition to rehear is denied.

Ross W. Dyer, J.

Burnett, C J; Chattin & Creson, J J ; 
Harbison, S J ;
Concur



MEIIEN PRESS INC. —  N. Y. 219