IN THE YMCA MODEL SUPREME COURT FOR THE STATE OF TENNESSEE AT

NASHVILLE

JOSEPH VIERRA CAROLINE SIGMUND

APPELLANT CHIEF JUSTICE OF THE YMCA SUPREME COURT

VS. DAVID WARE

MELANIE YORK
STATE OF TENNESSEE ATTORNEYS FOR JOSEPH VIERRA
APPELLEE HILLSBORO HIGH SCHOOL
NASHVILLE, TN 37215

BRIEF FOR THE APPELLANT

JOSEPH VIERRA
TABLE OF CONTENTS

PAGE

Questions Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i

Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Statement of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2, 3

Summary of Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

I. THE CONFESSION DERIVED FROM THE

APPELLANT SHOULD NOT HAVE BEEN
ALLOWED TO BE TAKEN INTO EVIDENCE
BY THE TRIAL JUDGE, DUE TO THE
VIOLATIONS OF THE APPELLANTS
MIRANDA RIGHTS, USAGE OF COERCION
AND VIOLATIONS OF THE FOURTEENTH
AMENDMENT OF THE US CONSTITUTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

A. The officers presiding were in violation of Miranda

Rights, as the officer did not inform the Appellant
of the Fifth & Sixth Amendments of the United
States Constitution, leading to self incrimination
of the Appellant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

B. The officers presiding were in violation of the

Sixth Amendment of the United States Constitution,
as they questioned the Appellant without informing
him of his right to counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
TABLE OF CONTENTS [Cnt.]

PAGE

C. The officers presiding utilized both emotional and

physical coercion, leading to the self incrimination
of the Appellant, and in turn violated the Fourteenth
Amendment of the United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

II. THE TRIAL JURY WAS INCORRECT IN

SENTENCING THE APPELLANT TO
CAPITAL PUNISHMENT AS MITIGATING
FACTORS WERE NOT ADDRESSED
BY THE TRIAL JUDGE TO THE FULLEST
EXTENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

A. The trial judge & jury did not account for the
mitigating circumstances in regards to Tennessee
Code Annotated 39-13-204 (f) (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

B. The trial judge & jury did not account for the
mitigating circumstances in regards to the
Appellant’s Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Certificate of Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

QUESTIONS PRESENTED

I. Was the trial court, specifically the trial judge, correct in the admittance of Vierra’s
confession into evidence, considering the confession in question is in violation of the
Fifth and Fourteenth Amendment rights under the United States Constitution due to the
state of questioning by the officers present?

II. Was the trial court, specifically the verdict of the jury, correct in sentencing Vierra to
death, as he was an active participant but not the murder of Ellen Curtis, and the
mitigating factors were not addressed by the trial judge to the fullest extent?

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TABLE OF AUTHORITIES

Cases Pages

Miranda v. Arizona​, 86 S.Ct. 1602 (1966). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

Rhode Island v. Innis,​ 100 S.Ct. 1682 (1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8

Orozco v. Texas,​ 394 U.S. 324 (1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Berkemer v. McCarty,​ 104 S.Ct. 3138 (1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Fifth Amendment of the United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6

Sixth Amendment of the United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5, 6

Brewer v. Williams,​ 97 S.Ct. 1232 (1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Oregon v. Elstad​, 470 U.S. 298 (1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

North Carolina v. Butler,​ 441 U.S. 369 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Escobedo v. Illinois​, 378 U.S. 478 (1964). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Blackburn v. Alabama​, 361 U.S. 199, 206 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Schneckloth v. Bustamonte​, 412 U.S. at 227, 93 S.Ct. at 2048 (1973). . . . . . . . . . . . . . . . . .7

IV National Commission on Law Observance and Enforcement, ​Report on Lawlessness in Law

Enforcement​ (1931) [Wickersham Report]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Fourteenth Amendment of the United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . .8

Tennessee Code Annotated 39-13-204 (f) (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

Lockett v. Ohio,​ 438 U.S. 586 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9

Eighth Amendment of the United States Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

State v. Dicks​, 615 S.W.2d 126 (1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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 STATEMENT OF THE CASE

Procedural History:

Following the questioning of Officers Michelangelo, Donatello, Leonardo, and Raphael

on February 4, 1998 and the Appellant Vierra’s confession, the case was brought to trial. The
Appellant, Joseph Vierra, was brought to trial on the grounds of the confession obtained by the
questioning officers, of which contained his confessions to both his presence and compliance at
the time of the rape of Ellen Curtis, and the murder of Ellen Curtis. The Appellant lawyer
objected that the established confession of Appellant Vierra should be disregarded due to
violations against the Fifth and Fourteenth amendments of the United States Constitution at
elicitation. Over objection, the trial judge allowed for Vierra’s confession to be submitted into
evidence. Following the trial the jury found Vierra guilty of murder of the first degree and an
accomplice to the rape of Ellen Curtis.
The jury specifically found: “The murder was especially heinous, atrocious, or cruel in
that it involved torture or depravity of mind; The murder was committed while the Defendant
was an accomplice in the commission of rape.”
The jury, specifically the jury foreman, at the request of the trial judge, stated that the
jury found the following mitigating circumstances: “The Defendant has no significant history of
prior criminal history; The Defendant was an accomplice in the murder committed by another
person and the Defendant’s participation was relatively minor; The Defendant was 18 years of
age at the time of the crime.”

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 STATEMENT OF THE CASE

Statement of Fact:

The Defendant during the trial case, Rick Sullivan, a 19 year old high school student
(6’2”, 190 pounds) was known to have a violent temper which therefore resulted in violent
outbursts. The Defendant was not well liked by other students due to these violent outbursts. The
Defendant did not have any previous convictions or arrests. The Appellant, Joseph Vierra, an 18
year old high school student (5’6”, 130 pounds) was, unlike the Defendant, not known to have
hostile outbursts. The Appellant is a first generation American, and is “proud of his Italian
ancestry.” The Appellant is also extremely religious and attends church on a regular basis. Due
to the fact that the Appellant is not an aggressor in his school, he could have many friends;
however, his association with the Defendant, Rick Sullivan, ensured he would have few friends.
The Appellant, like the Defendant, had no prior arrests or convictions.
On February 2, 1998, Sullivan approached a fellow student, Ellen Curtis. Sullivan asked
Curtis to attend the Valentine’s dance with him. She stated that she would have an answer for
him at 3:00 in the afternoon that day. Before the meeting, with her friends present, Curtis stated
that she was going to “put Sullivan in his place.” At 3:00 in the afternoon, Sullivan met Curtis in
the cafeteria. At that time, Curtis proceeded to publicly humiliate Sullivan, refusing Sullivan’s
proposition and insulting him. In response, Sullivan stated, “I promise you, Ellen, I will be the
last person you will see on earth!”
That night, Sullivan called Vierra and they prepared for Sullivan’s plans. This resulted in
Sullivan and Vierra to purchase a gun, a hunting knife, eight feet of rope, and a shovel. Vierra
repeatedly told Sullivan that this was “not a good idea.” However, due to their friendship, Vierra
would follow through.
During the following day, February 3, 1998, neither Sullivan nor Vierra attended school.
Curtis, however, did attend school, but never made it home. According to the plan, Sullivan and
Vierra kidnapped Curtis after school and drove her out to the woods. While driving, Vierra told
Sullivan that he “should forget the plan and let Ellen go.” However Sullivan refused to go back.
Once they got to the final destination, Sullivan raped and tortured the victim, shot her six times,
and buried her body. Vierra participated in tying Curtis up and burying her; he did not, however,
directly participate in the rape or murder. Unknown to Vierra, later that night, Sullivan
committed suicide.
The next morning, February 4, 1998, police were informed by Curtis’ parents of her
being missing. Following that, Vierra was questioned by police. The officers entered his home at
his approval, as they stated that they needed to question him in an ongoing murder investigation.
However, at no time here was the Appellant informed of his Miranda rights. He was not

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 STATEMENT OF THE CASE

Statement of Fact [Cnt. from page 2]:

handcuffed or bound in any way. He stated that he would not answer questions until his mother
returned home. In regards to this, police did not directly question him. However they stood
approximately 10 feet away and discussed false information. Officer Donatello commented that,
“Ellen’s mother was Italian and that she was beside herself with grief that unless her baby (Ellen)
was found immediately, she would not have a proper funeral and burial.” Leonardo stated that,
“Ellen’s Italian relatives would like so much to say goodbye to Ellen, but they will be unable to
do so if Ellen’s body is not found.” Officer Raphael commented that, “Ellen’s family was very
religious and that if Ellen did not receive the necessary religious ceremonies they didn’t think
she could go to heaven.” The guilt felt by the Appellant led him to confess involvement in the
case to the officers present.

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 SUMMARY OF ARGUMENT

It is required that all officers of the law present all persons, suspected and/or arrested for
a crime, of their rights associated with the Fifth & Sixth Amendments of the United States
Constitution, or more commonly known as the “Miranda Rights.” By not presenting the Miranda
rights to the Appellant, they were already in violation of ​Miranda v. Arizona​ (1966).
Additionally, officers of the law do not have the ability to choose when the Miranda
rights are presented to all persons, suspected and/or arrested for a crime, of their rights associated
with the Fifth & Sixth Amendments of the United States Constitution. It is also important to note
that if a confession is derived from any person(s), suspected and/or arrested for a crime, without
the officers presiding presenting them with the Miranda Rights, the court cannot assume that
those person(s) waived their rights. Furthermore, the court cannot accept a confession, of which
was obtained without the presenting of the Miranda Rights.
Coercion can include both mental and physical forms. From this, playing on the
Appellant’s emotions and personality to elicit a response is categorized as mental coercion. Both
the use of mental and physical coercion are prohibited in deriving a confession, or during
questioning. Both physical and mental forms of coercion were used, as the officers presiding
blocked the only exit to the house, and stated false information to derive a confession.
It is crucial that when mitigating circumstances are present and the jury acknowledges
them that the judge and jury are responsible for ensuring that the defendant is not sentenced to
capital punishment if too many questions are raised regarding the crime. In addition, when a
mitigating circumstance, such as being an accomplice are present, it is important to acknowledge
the Eighth Amendment of the Constitution of the United States.
The trial jury did not include the fullest extent of the mitigating circumstances. The
background of the Appellant must be included. While past convictions were part of the
background in regards to the amount of previous arrests, the character of the Appellant was not
included in the final mitigating circumstances presented to the trial judge.

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 ARGUMENT

I. THE CONFESSION DERIVED FROM THE APPELLANT SHOULD NOT HAVE BEEN
ALLOWED TO BE TAKEN INTO EVIDENCE BY THE TRIAL JUDGE DUE TO THE
VIOLATIONS OF THE APPELLANTS MIRANDA RIGHTS, USAGE OF COERCION AND
VIOLATIONS OF THE FOURTEENTH AMENDMENT OF THE US CONSTITUTION.

A. The officers presiding were in violation of Miranda Rights, as the officer did not inform
the Appellant of the Fifth & Sixth Amendments of the United States Constitution, leading
to self incrimination of the Appellant.

It is a requirement that all officers of the law inform all persons, suspected and/or arrested

for a crime, of their rights associated with the Fifth & Sixth Amendments of the United States

Constitution. Specifically, officers must inform persons suspected and/or arrested for a crime,

upon investigation and questioning. This is to ensure that peoples under investigation are aware

of their constitutional rights of which give them the right to not self incriminate and to have

counsel present. ​Miranda v. Arizona,​ 86 S.Ct. 1602 (1966).

Furthermore these Miranda rights come into play “whenever a person in custody is

subjected to either express questioning or its functional equivalent.” As well,

questioning/interrogation is defined as “any words or actions on the part of the police (other than

those normally attendant to arrest and custody) that the police should know are reasonably likely

to elicit an incriminating response from the subject.” ​Rhode Island v. Innis​, 100 S.Ct. 1682

(1980). This is also equally apparent in ​Orozco v. Texas​, 394 U.S. 324 (1969), where, similarly

to the Appellant in this case, the respondent in ​Orozco v. Texas​ (1969) was interrogated in his

own residence without being given his Miranda rights; this was found as unconstitutional by the

self-incrimination clause of the Fifth Amendment of the United States Constitution.

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 In addition, the jurisdiction of when it is necessary for an officer of the law to inform all

persons suspected of a crime and/or arrested for a crime of their rights associated with the Fifth

& Sixth Amendments of the United States Constitution does not fall upon that officer. “Miranda

Rights” specifically the Fifth & Sixth Amendments of the United States Constitution must be

informed to all persons upon questioning/investigation regardless of the crime suspect of being

committed/committed. Specifically, even in the case of a misdemeanor, officers of the law must

inform persons suspected of a crime and/or arrested for a crime, upon investigation and

questioning. ​Berkemer v. McCarty​, 104 S.Ct. 3138 (1984) The officers presiding were in

violation of the Sixth Amendment of the United States Constitution, as they questioned the

Appellant without regard for his request for counsel.

When an oral confession is taken without the starting of the evidence, it is inadmissible to

a court of law; in this case, the incriminating statement made in person before Miranda rights

was not counted, but his subsequent written confession was. ​Oregon v. Elstad​, 470 U.S. 298

(1985)

B. The officers presiding were in violation of the Sixth Amendment of the United States
Constitution, as they questioned the Appellant without informing him of his right to
counsel.

All persons suspected and/or arrested for a crime whom have requested the presence of

counsel may not be questioned in any capacity, as questioning without a lawyer present and

without the suspect’s will is unconstitutional. ​Brewer v. Williams,​ 97 S.Ct. 1232 (1977)

Furthermore, questioning is not limited to “any words or actions on the part of the police (other

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than those normally attendant to arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the subject.” ​Rhode Island v. Innis​, 100 S.Ct. 1682

(1980) While the Appellant did not request the presence of counsel, he was not given the right to

Counsel due to the lack of the officers stating his Miranda Rights. In turn, because the Appellant

was not given the right to counsel, the court must not presume that the Appellant waived his

rights to counsel. ​North Carolina v. Butler,​ 441 U.S. 369 (1979)

Furthermore, no persons suspected and/or arrested for a crime may be denied their Sixth

Amendment of the United States Constitution upon questioning, specifically those in custody.

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

C. The officers presiding utilized both emotional and physical coercion, leading to the self
incrimination of the Appellant and in turn violated the Fourteenth Amendment of the
United States Constitution.

The act of coercion under the law is classified both as mental and physical. ​Blackburn v.

Alabama​, 361 U.S. 199, 206 (1960) Both acts of coercion were present as officers utilized false

information that played on the Appellant’s emotions and also blocked the physical exit to the

home of the Appellant during questioning, negating the claim that the Appellants confession was

voluntary. ​Schneckloth v. Bustamonte​, 412 U.S. at 227, 93 S.Ct. at 2048 (1973) Utilizing

coercion during questioning/investigation of which are defined as “any words or actions on the

part of the police (other than those normally attendant to arrest and custody) that the police

should know are reasonably likely to elicit an incriminating response from the

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subject.” ​Rhode Island v. Innis​, 100 S.Ct. 1682 (1980) is against law. IV National Commission

on Law Observance and Enforcement, ​Report on Lawlessness in Law Enforcement​ (1931)

[Wickersham Report]

The actions, both physical and mental, are in violation of the Fourteenth Amendment of

the United States Constitution, as coercion does not allow for equal protection and enforcement

under the law. As the Appellant was guilted and physically intimidated into a confession, it was

not found by the presiding officers nor an investigator through a legal means of questioning.

II. THE TRIAL JURY WAS INCORRECT IN SENTENCING THE APPELLANT TO

CAPITAL PUNISHMENT AS MITIGATING FACTORS WERE NOT ADDRESSED BY THE
TRIAL JUDGE TO THE FULLEST EXTENT.

A. The trial judge & jury did not account for the mitigating circumstances in regards to
Tennessee Code Annotated 39-13-204 (f) (2)

The trial jury did not account for the abundance of mitigating circumstances as they

should have. According to Tennessee Code Annotated 39-13-204 (f) (2) when the trial jury has

enough doubt to present mitigating circumstances, the trial jury is responsible for not sentencing

the Appellant to capital punishment, but rather to “either to imprisonment for life without

possibility of parole or to imprisonment for life.” Tennessee Code Annotated 39-13-204 (f) (2)

Although the jury did not find that the mitigating circumstances were significant enough to cause

doubt, it is claimed that they should have due to the consideration of the sheer amount of

mitigating circumstances to the statutory aggravating factors. A prominent example of where

enough definitive mitigating circumstances were considered to overthrow an original death

penalty despite the severity of the original crime is ​Lockett v. Ohio,​ 438 U.S. 586 (1978), where

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the defendant (Sandra Lockett) encouraged the robbery of a pawn shop which resulted in the

murder of the owner. Since Lockett was only driving the getaway car and was not actively

involved in the crime other than providing outside aid, the death penalty was overturned due to

the Eighth Amendment of the United States Constitution describing cruel and unusual

punishment. This can be seen as similar to the Appellant’s situation; the Appellant was not

involved in the committing of the statutory aggravating act (like Lockett), has even more

mitigating factors than Lockett (such as being 18 years of age), and yet still is sentenced to death

(unlike Lockett).

B. The trial judge & jury did not account for the mitigating circumstances in regards to the
Appellant’s background.

The background of the Appellant needs to be considered in mitigating factors, in which

specifically the consideration of personal information is important. ​State v. Dicks​, 615 S.W.2d

126 (1981) Aspects of the Appellant such as a past of no physical violence/assault and a

background of no belligerence are such mitigating factors. While factors such as no previous

arrests or convictions were considered, aspects of the Appellant's character were not, and with

this present, it is not necessary that the jury convict the Appellant of capital punishment; it is

recommended that they further consider mitigating factors. Specifically, it is "[h]ighly relevant if

not essential (​Lockett v. Ohio​, 438 U.S. 586 (1978)) that the sentencer consider particular

circumstances such as the background and personal characteristic of each defendant.” ​State v.

Dicks,​ 615 S.W.2d 126 (1981)

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 CONCLUSION

For the above stated reasons, Appellant requests that the YMCA Model Supreme Court for the
State of Tennessee at Nashville affirm the judgment of the trial court.

Respectfully submitted,

David Ware

Melanie York

Attorneys for the Appellant

Hillsboro High School
Nashville, TN 37215
April 4-7, 2019

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 CERTIFICATE OF SERVICE

I hereby certify that a true and exact copy of the foregoing Brief has been sent by U.S. Mail,
postage prepaid, to all appropriate parties, this 27​th​ day of March 2019.

David Ware

Melanie York

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