Petition for Writ of Certiorari — Tawuan Townes, Petitioner v. Alabama

No. _____________

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2017

__________________________________________________

TAWUAN TOWNES, Petitioner,

v.

STATE OF ALABAMA, Respondent.

__________________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO

THE ALABAMA COURT OF CRIMINAL APPEALS

__________________________________________________

PETITION FOR WRIT OF CERTIORARI

__________________________________________________

ANGELA L. SETZER

Counsel of Record

BENJAMIN H. SCHAEFER

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

asetzer@eji.org

bschaefer@eji.org

February 20, 2018

Counsel for Petitioner

CAPITAL CASE

QUESTIONS PRESENTED

Tawuan Townes’s capital conviction and death sentence were initially reversed

by the Alabama Court of Criminal Appeals based on an instruction that improperly

required the jury to presume that Mr. Townes possessed the specific intent to kill, a

necessary element of capital murder in Alabama. This jury instruction was contained

in a trial record produced and certified by the court reporter present at the trial and

then reviewed and relied upon over the next two and a half years by undersigned

counsel, the State, and the appellate courts during the drafting of multiple briefs, and

oral argument that led to the lower court decision reversing Mr. Townes’s conviction

and sentence.

After this decision, the trial judge informed the appellate court that he had

listened to an audiotape of the trial and heard the word “may” and not the word “must”

in the jury instruction. The appellate court ordered a second court reporter to

transcribe the audiotape of the guilt/innocence phase jury instructions, specifically

indicating to the court reporter that the only real issue was whether the judge had said

“may” as the judge contended or the word “must” as Mr. Townes contended (resulting

in reversal and a new trial). This second court reporter transcribed the judge’s

instruction as the intent to kill “may be inferred.” Based upon the modified record, the

appellate court affirmed Mr. Townes’s conviction and sentence.

These facts give rise to the following questions:

I.

Did the process by which the Alabama courts amended the certified

record after reversible error had been found violate due process and the

Eighth Amendment requirement for heightened reliability in capital

cases?

II.

Where there is a substantial risk that the jury was improperly instructed

on the critical issue of intent, are the Eighth and Fourteenth

Amendments violated?

i

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

RELEVANT CONSTITUTIONAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

I.

FACTUAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II.

PROCEEDINGS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

REASONS FOR GRANTING THE WRIT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

I.

REVIEW SHOULD BE GRANTED TO DETERMINE WHETHER

THE PROCESS BY WHICH THE ALABAMA COURTS

AMENDED THE CERTIFIED RECORD AFTER REVERSIBLE

ERROR HAD BEEN FOUND VIOLATES DUE PROCESS AND

THE REQUIREMENT FOR HEIGHTENED RELIABILITY IN

CAPITAL CASES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

II.

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE

WHETHER THE SUBSTANTIAL RISK THAT THE JURY WAS

IMPROPERLY INSTRUCTED ON THE CRITICAL ISSUE OF

INTENT VIOLATES THE EIGHTH AND FOURTEENTH

AMENDMENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

APPENDIX A

Alabama Court of Criminal Appeals opinion, Townes v. State, No.

CR–10–1892 (Ala. Crim. App. June 13, 2014) (opinion withdrawn).

APPENDIX B

Alabama Court of Criminal Appeals opinion, Townes v. State, No.

CR–10–1892, 2015 WL 9263802 (Ala. Crim. App. Dec. 18, 2015),

and order denying rehearing on March 17, 2017.

ii

APPENDIX C

Alabama Supreme Court order denying certiorari, Ex parte

Townes, No. 1160523 (Ala. Oct. 20, 2017).

iii

TABLE OF CITED AUTHORITIES

CASES

Allison v. State, 645 So. 2d 358 (Ala. Crim. App. 1994) . . . . . . . . . . . . . . . . . . . . . . 17

Andres v. United States, 333 U.S. 740 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Armstrong v. State, 710 So. 2d 531 (Ala. Crim. App. 1997). . . . . . . . . . . . . . . . . . . 17

Boyd v. State, 542 So. 2d 1247 (Ala. Crim. App. 1988) . . . . . . . . . . . . . . . . . . . . . . 17

Brown v. State, 72 So. 3d 712 (Ala. Crim. App. 2010) . . . . . . . . . . . . . . . . . . . . . . . 20

Burks v. United States, 437 U.S. 1 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Carella v. California, 491 U.S. 263 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 21

Chessman v. Teets, 354 U.S. 156 (1957) . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16, 19

Cole v. Arkansas, 333 U.S. 196 (1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Commonwealth v. Dougherty, 18 A.3d 1095 (Pa. 2011) . . . . . . . . . . . . . . . . . . . . . . 16

Connecticut v. Johnson, 460 U.S. 73 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Draper v. Washington, 372 U.S. 487 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Eskridge v. Washington State Bd. of Prison Terms and Paroles,

357 U.S. 214 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Flowers v. State, 799 So. 2d 966 (Ala. Crim. App. 1999) . . . . . . . . . . . . . . . . . . . . . 18

Francis v. Franklin, 471 U.S. 307 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 22

Ex parte Frazier, 758 So. 2d 611 (Ala. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Griffin v. Illinois, 351 U.S. 12 (1956) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19

Hammonds v. Allen, 849 F.Supp.2d 1262 (M.D. Ala. 2012). . . . . . . . . . . . . . . . . . . 16

Hammonds v. Comm’r, Ala. Dep’t of Corr., No. 15-11797,

2017 WL 4675707 (11th Cir. Oct. 17, 2017). . . . . . . . . . . . . . . . . . 16, 17

iv

Hardy v. United States, 375 U.S. 277 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

L.W.C. v. State, 576 So. 2d 681 (Ala. Crim. App. 1991) . . . . . . . . . . . . . . . . . . . 17, 18

Lipscomb v. State, 68 So. 2d 862 (Ala. Ct. App. 1953) . . . . . . . . . . . . . . . . . . . . 17, 18

M.B. v. State, 630 So. 2d 490 (Ala. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . . . . . 17

McGriff v. State, 908 So. 2d 961 (Ala. Crim. App. 2000) . . . . . . . . . . . . . . . . . . . . . 17

Ex parte McGriff, 908 So. 2d 1024 (Ala. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Mills v. Maryland, 486 U.S. 367 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 23

Mitchell v. Wyrick, 698 F.2d 940 (8th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Parker v. Dugger, 498 U.S. 308 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19

Sandstrom v. Montana, 442 U.S. 510 (1979) . . . . . . . . . . . . . . . . . . . . . . . . 19, 20, 22

Shafer v. South Carolina, 532 U.S. 36 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Townes v. State, No. CR-10-1892 (Ala. Crim. App. June 13, 2014). . . . . 1, 12, 20, 21

Townes v. State, No. CR-10-1892, 2015 WL 9263802

(Ala. Crim. App. Dec. 18, 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 13

Ex parte Townes, No. 1160523 (Ala. Oct. 20, 2017) . . . . . . . . . . . . . . . . . . . . . 1, 3, 13

William v. State, 548 So. 2d 516 (Ala. Crim. App. 1988) . . . . . . . . . . . . . . . . . . 17, 18

In re Winship, 397 U.S. 358 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Woodson v. North Carolina, 428 U.S. 280 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 19, 22

STATUTES

28 U.S.C. § 1257(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

v

____________________________________________

PETITION FOR WRIT OF CERTIORARI

____________________________________________

Tawuan Townes respectfully petitions for a writ of certiorari to review the

judgment of the Alabama Court of Criminal Appeals.

OPINIONS BELOW

The opinion of the Alabama Court of Criminal Appeals reversing Mr. Townes’s

conviction and death sentence, Townes v. State, No. CR–10–1892 (Ala. Crim. App.

June 13, 2014), has since been withdrawn and is attached at Appendix A. The opinion

of the Alabama Court of Criminal Appeals affirming Mr. Townes’s conviction and death

sentence, Townes v. State, No. CR–10–1892, 2015 WL 9263802 (Ala. Crim. App. Dec.

18, 2015), is not yet reported and is attached at Appendix B, along with that court’s

order denying rehearing. The order of the Alabama Supreme Court denying Mr.

Townes’s petition for a writ of certiorari, Ex parte Townes, No. 1160523 (Ala. Oct. 20,

2017), is unreported and attached at Appendix C.

JURISDICTION

The Alabama Court of Criminal Appeals affirmed Mr. Townes’s conviction and

death sentence on December 18, 2015. Townes v. State, No. CR–10–1892, 2015 WL

9263802 (Ala. Crim. App. Dec. 18, 2015). On March 17, 2017, the Court of Criminal

Appeals denied rehearing. The Alabama Supreme Court denied Mr. Townes’s petition

for a writ of certiorari on October 20, 2017. Ex parte Townes, No. 1160523 (Ala. Oct.

20, 2017). On January 3, 2018, Justice Thomas extended the time for filing this

1

petition for a writ of certiorari to February 20, 2018. Jurisdiction is invoked pursuant

to 28 U.S.C. § 1257(a).

RELEVANT CONSTITUTIONAL PROVISIONS

The Eighth Amendment to the United States Constitution provides:

Excessive bail shall not be required, nor excessive fines imposed, nor

cruel and unusual punishments inflicted.

The Fourteenth Amendment to the United States Constitution provides in

pertinent part:

No State shall . . . deprive any person of life, liberty, or property, without

due process of law; nor deny to any person within its jurisdiction the

equal protection of the laws.

STATEMENT OF THE CASE

I.

FACTUAL BACKGROUND

On November 13, 2008, two armed men entered 1021 Blackshear Street in

Dothan, Alabama, and attempted to rob Christopher Woods. (C. 50.)1 Mr. Wood’s

girlfriend, India Starks, fled from the home. (R. 450-51.) In the midst of the robbery,

Mr. Woods was shot once in the hip and once in the chest and died. (C. 50.)

At 4:40 a.m. on November 14, 2008, Dothan police awakened Tawuan Townes,

arrested him, and brought him to an interrogation room at the police station. (R. 672,

674.) Tawuan had just recently turned 18 years old (C. 510; R. 396), had no prior

experience with the criminal justice system (C. 309; R. 1079), and had last attended

1

“R.” refers to the trial record. “C.” refers to the clerk’s record. “SR.” refers to the first

supplemental record. “SSR.” refers to the second supplemental record. “SSSR.” refers

to the third supplemental record. “SSSSR.” refers to the fourth supplemental record.

2

school as a tenth grader (C. 493; R. 923-24). Throughout the interrogation, the police

repeatedly told Tawuan that his co-defendant had implicated him in the crime, when

in fact, his co-defendant had not been apprehended.2 (C. 494, 496, 506; R. 647.) In

addition, the detectives offered to help Tawuan if he confessed and explained that he

would “spend forever in prison” if he did not. (C. 494-95, 497.)

In his statement to police, Tawuan said that he and Cornelius Benton decided

to rob Mr. Woods, a local drug dealer. (C. 499, 504.) Tawuan told the police that

Benton kicked in the front door of the residence and beat and shot Mr. Woods. (C. 499500.) While Tawuan further stated that he fired a shot to scare Mr. Woods, he

repeatedly denied shooting at Mr. Woods or having any intent to kill him. (C. 498, 500,

510.) He also repeatedly discussed how he told Benton not to shoot the victim. (C. 500,

508, 509.) Mr. Townes was indicted on one count of capital murder in connection with

the death of Christopher Woods on November 19, 2008. (C. 15.)

During jury selection, the trial court granted the State’s challenge for cause of

veniremember J.P., even though J.P.’s views on the death penalty were not

2

Cornelius Benton, the 23-year-old co-defendant, eluded arrest until after Mr. Townes’s

trial and sentencing. See State vs. Benton, CC-2011-001139.00 (Houston County Cir.

Ct. Aug. 10, 2011). When he was arrested, he admitted shooting Mr. Woods and

pleaded guilty to murder. Dothan Man Avoids Death Row In Murder Case,

DOTHANFIRST.COM, http://www.dothanfirst.com/news/top-stories/dothan-man-avoidsdeath-row-in-murder-case/130607577 (last visited Feb. 17, 2018). He was deemed a

habitual offender because of his prior convictions for cocaine possession and escape and

sentenced to 20 years in prison. See State vs. Benton, CC-2011-001139.00 (Houston

County Cir. Ct. Oct. 15, 2012); see also State vs. Benton, CC-2007-000331.00 (Houston

County Cir. Ct. Nov. 5, 2007); State vs. Benton, CC-2004-000832.00 (Houston County

Cir. Ct. Oct. 18, 2004).

3

disqualifying. (R. 286-88.) The State then struck five of the eight qualified AfricanAmerican veniremembers, leaving one African American on Mr. Townes’s jury. (R.

339-40, 361; SR. 10-37.) The trial court did not find a prima facie case of racially

discriminatory jury selection. (R. 340-41, 360-62.)

On March 8, 2011, Mr. Townes’s capital trial commenced. (R. 357, 363.) During

opening statements, District Attorney Douglas Valeska showed the jury Mr. Townes’s

mug shots and pointed out that Mr. Townes’s appearance had changed since his arrest.

(R. 367.) He then informed the jury that the evidence would show that Mr. Townes

shot the victim in the thigh with a .22 caliber rifle and Cornelius Benton shot the

victim in the chest with a .380 caliber handgun. (R. 370-72.) Defense counsel did not

contest the State’s version of events except as to the issue of intent, telling the jury

that Mr. Townes had committed felony murder because he intended to rob but did not

intend to kill. (R. 397-99.)

During the State’s case, District Attorney Valeska presented the testimony of

six police officers, the victim’s girlfriend, a medical examiner, a firearms expert, a

forensic scientist, and the victim’s mother. (R. 399-711.) The victim’s mother was the

first witness called. (R. 399-400.) District Attorney Valeska showed her an autopsy

photograph of her son (C. 444; R. 404), and she testified that the last time they spoke

they expressed their love for one another (R. 401).

India Starks, the victim’s girlfriend, testified that the suspect with the braids

(Mr. Townes) shot with the longer gun (the .22 caliber rifle) and appeared to hit the

victim in the leg. (R. 446-47.) She testified that the other man (Cornelius Benton) shot

4

the victim with the shorter gun (the .380 caliber handgun). (R. 448.)

When the firearms expert took the stand, District Attorney Valeska asked him

whether he had worked cases where .380 caliber and .22 caliber weapons had killed,

and then asked the same question about .45 caliber weapons. (R. 525.) The medical

examiner took the stand and testified that the smaller .22 caliber bullet struck the

victim in the chest and caused his death. (R. 615-17.) District Attorney Valeska

introduced twelve autopsy photographs into evidence (C. 477-85, 487-89; R. 582-610),

and repeatedly asked the medical examiner about the amount of pain felt by the victim

(R. 588, 592, 595, 597-98, 602, 604, 606-07, 619-20).

When questioning the four police officers involved in Mr. Townes’s arrest and

interrogation, District Attorney Valeska showed each officer Mr. Townes’s mug shot

and asked about his change in appearance. (C. 454; R. 550, 566, 626, 666-67.) During

one officer’s testimony, District Attorney Valeska entered Mr. Townes’s statement to

police into evidence. (R. 697.) During a second officer’s testimony, District Attorney

Valeska introduced into evidence several .45 caliber bullets, a .45 caliber magazine, a

knife, and handwritten rap lyrics recovered from a backpack found in the utility room

of a residence where Mr. Townes sometimes stayed. (C. 453; R. 628-32; SSR. 12-21.)

Defense counsel did not call any witnesses. (R. 712.) In closing, counsel argued

that Mr. Townes was an unsophisticated 18-year-old who made a terrible decision to

rob the victim but did not intend to kill. (R. 776-77, 778, 780, 784.) He asked the jury

not to let the district attorney’s attempts to paint Mr. Townes as a bad person obscure

the facts. (R. 777-78.) He then asked the jury to find Mr. Townes guilty of felony

5

murder. (R. 784.)

In his closing argument, District Attorney Valeska emphasized that Mr. Townes

looked different at trial than he did at the time of the crime, when he had “dreads”, and

argued that Mr. Townes’s change in appearance indicated that he was guilty of capital

murder. (R. 747, 754, 797.) District Attorney Valeska told the jury that the evidence

contradicted the defense’s theory that Mr. Townes shot the victim in the leg. (R. 751.)

Defense counsel objected, pointing out that the State had told the jury that Mr. Townes

shot the victim in the leg. (R. 751-52.) District Attorney Valeska then insinuated that

he and his police officers had more evidence of Mr. Townes’s guilt than they were able

to present to the jury (R. 756, 759-60), reminded the jury of the victim’s mother’s

testimony about telling her son that she loved him (R. 760), once again showed the jury

the autopsy photographs (R. 786-89), and described in detail the pain and suffering

experienced by the victim (R. 763, 765, 773, 794). District Attorney Valeska also

argued that, because Mr. Townes had a backpack with .45 caliber bullets, he was the

type of individual who committed capital murder. (R. 748-49, 785.) District Attorney

Valeska concluded his argument by asking the jury to “send a loud message” by

convicting Mr. Townes of capital murder. (R. 798.)

Following closing arguments, Circuit Court Judge Larry Anderson instructed

the jury that it was required to find specific intent to kill if Mr. Townes acted

deliberately and could reasonably apprehend that his actions would result in death.

6

(R. 824.)3 Judge Anderson also informed the jury that the difference between capital

murder and felony murder was an intentional killing.

(R. 832.)

Following

deliberations that spanned two days (R. 851-54), during which the jury asked to review

India Starks’s testimony (R. 853), the jury found Mr. Townes guilty of capital murder

during a burglary (R. 861-62).

Immediately following the verdict, the penalty phase commenced. (R. 863-64.)

District Attorney Valeska told the jury that he would prove that Mr. Townes actually

preferred the death penalty over life without parole. (R. 867.) He argued that he

would also prove three aggravating circumstances: the capital offense occurred during

a burglary, the capital offense occurred during a robbery, and the capital offense was

especially heinous, atrocious, and cruel compared to other capital offenses. (R. 868,

872.) He then incorporated the testimony and exhibits admitted at the guilt/innocence

phase and presented victim impact testimony from the victim’s parents. (R. 887-94.)

In support of a sentence of life without parole, defense counsel presented the

testimony of Beverly Harris, Dr. David Ghostley, and Tawuan’s parents. (R. 894-941,

SR. 4-83.) Tawuan’s mother testified about the poverty and violence that defined his

childhood. (R. 897-98.) She testified to the troubles he had in school from an early age,

when he was given medication at five years old. (R. 898.) She told the jury that she

was a poor influence on him, that she made him stop taking his medication, and that

3

The original certified record established that Judge Anderson instructed the jury that

it “must infer intent.” Subsequently, the record was amended to reflect that the jury

was instructed that it “may infer intent.” This instruction, and the process by which

it was amended, form the basis of this petition. See infra, at 14-23.

7

her drug addiction led her to put her welfare ahead of the welfare of her children. (R.

898, 900, 914-15, 932.) She talked about how she tried to pay the bills by selling drugs

and how she was sent to prison when Tawuan was 14 years old. (R. 901, 910-12.)

Tawuan’s father testified about how, as a young child, Tawuan grew up poor and

was surrounded by domestic violence, alcoholism, drug dealing, and drug abuse. (SR.

6, 8, 11-13, 16.) He testified that he abandoned all of his children when Tawuan was

five or six years old and was then out of Tawuan’s life for almost a decade. (SR. 6, 9.)

When he moved closer to Tawuan after Tawuan’s mother went to prison, he did not

provide Tawuan with housing even though Tawuan had nowhere to live. (SR. 9.)

Beverly Harris testified that Tawuan asked to live with her after the friend he

had been staying with had to move and he had nowhere else to go. (SR. 37-38.) She

told the jury that Tawuan provided her with financial support, giving her half of his

Burger King wages, and that he was great with her kids. (SR. 38-39.) In crossexamining Ms. Harris, and over defense objection, District Attorney Valeska

insinuated that Tawuan preferred the death penalty to life without parole based upon

jailhouse recordings that the State had not turned over to the defense. (SR. 44-50,

60-66.)

District Attorney Valeska also asked Ms. Harris if she recognized the

handwritten rap lyrics in the backpack as Tawuan’s handwriting, and she testified that

she did not. (SR. 64-65.) Dr. Ghostley then testified about the impact Tawuan’s

troubled childhood had on his development. (SR. 72-73.)

In defense counsel’s closing statement, he argued that the mitigating

circumstances, including the fact that Tawuan was 18 years and four months old at the

8

time of the crime (R. 965), that he had a troubled childhood (R. 967-71, 974-76), and

that he had no prior criminal record (R. 965), were not outweighed by the aggravating

circumstances. (R. 964.) Counsel argued that Tawuan “never had a chance from the

get-go” (R. 967), and pointed to the fact that Tawuan’s brothers all struggled as adults

as evidence of the dysfunctional environment in which they were raised (R. 970-71).

Defense counsel also argued that Tawuan had shown remorse by waiving his rights

and telling the police about the crime. (R. 973-74.)

In rebuttal, District Attorney Valeska argued that Mr. Townes had not accepted

responsibility for his actions because he pleaded not guilty. (R. 977.) He argued that

the .45 caliber bullets and writings – “rap crap” – found in the backpack weighed in

favor of a death verdict. (R. 980, 982, 988.) He also told the jurors that he believed

they were smart enough to vote for the death penalty even though most of them were

women (R. 983-84), pointed to the fact that Mr. Townes was “just sitting over there”

during the trial as evidence of his lack of remorse (R. 984), referred to the mitigating

evidence as a “[n]amby pamby bunch of crap” (R. 984), and argued that Biblical

teachings required a death sentence (R. 988). At the end of his penalty phase closing

argument, District Attorney Valeska told the jurors that they needed to “send a

message” to the community in the form of a death sentence (R. 989, 992), referred to

himself as “the soldier of death” (R. 991), and admonished the jury to “do what’s right”

by sentencing Mr. Townes to death (R. 989, 991).

During the jury charge, Judge Anderson refused defense counsel’s request to

instruct the jury that it could consider mercy and that it could impose a life sentence

9

for any reason. (C. 252, 257; R. 943-44, 946.) Judge Anderson did instruct the jury

that their sentencing vote would be a recommendation. (R. 1013-14.) On March 10,

2011, the same day that the penalty phase commenced, the jury recommended a death

sentence by a vote of 10 to 2. (C. 278; R. 1027-28.)

On July 18, 2011, Judge Anderson held a sentencing hearing at which he

considered evidence that had not been presented to the jury. (C. 307-12; R. 1038-39.)

He also expressed confusion over which gunshot killed the victim. (R. 1054.) District

Attorney Valeska explained that Mr. Townes killed the victim by shooting him in the

leg. (R. 1054.) District Attorney Valeska then once again mentioned Mr. Townes’s

decision to plead not guilty as a reason to sentence him to death. (R. 1055.)

Judge Anderson found that the State had proven two aggravating

circumstances, capital murder during a burglary and capital murder during a robbery.

(C. 321-22; R. 1079.) He found two statutory mitigating circumstances, each of which

he gave “some weight”: Mr. Townes’s young age and the fact that he had no significant

history of prior criminal activity. (C. 322-23; R. 1079-80.) Judge Anderson then noted

that the non-statutory mitigating circumstances presented by the defense were

common to most capital murder cases. (R. 1080 (“Also, in looking at nonstatutory

mitigators, and having tried numerous capital murder cases, many times there is some

commonality to some of this mitigation evidence: That an individual comes from a bad

background; that there is poverty; that there is a bad family life; that there is domestic

violence; that the defendant is living on the street; and et cetera, et cetera.”). He then

highlighted testimony about how, at five years old, Mr. Townes struggled in

10

kindergarten and had to be sent home by the principal. (R. 1081.) Judge Anderson

stated, “He’s brought nothing but misery to people throughout his life.” (R. 1081.)

Judge Anderson then referred to the jury’s vote as advisory and a recommendation,

found that the aggravating circumstances outweighed the mitigating circumstances,

and sentenced Mr. Townes to death. (C. 325; R. 1083.)

II.

PROCEEDINGS BELOW

On October 14, November 14, and December 19, 2011, the Alabama Court of

Criminal Appeals granted additional time for the circuit clerk to file the record on

appeal. (C. 435, 436, 438.) On December 12, 2011, the court reporter who recorded Mr.

Townes’s capital trial certified a “true and correct transcript of all proceedings.” (R.

1105.) On January 6, 2012, the circuit clerk filed the certified record with the Alabama

Court of Criminal Appeals.

(R. 1106.)

Mr. Townes then filed two motions to

supplement the record (SR. 3-7; SSR. 3-7), one of which asked the trial court to review

the completeness of the record with regard to the jury instructions (SR. 5). Judge

Anderson granted both motions (SR. 9; SSR. 9), and the circuit clerk subsequently filed

two supplemental records (SR. 90; SSR. 22).

The certified record contained the following jury instruction:

A specific intent to kill is an essential ingredient of capital murder as

charged in this indictment, and may be inferred from the character of an

assault, the use of a deadly weapon, or other attendant circumstances.

Such intent must be inferred if the act was done deliberately and death

was reasonably to be apprehended or expected as a natural and probable

consequence of the act.

(R. 824 (emphasis added).) On appeal, Mr. Townes argued that this instruction

11

violated state and federal law because it created a mandatory presumption with regard

to the issue of specific intent. (Appellant’s Br. 12; Reply Br. 2.) At no point during this

stage of the proceedings did the Attorney General, the District Attorney, the court

reporter, or the trial judge challenge the accuracy of the record. Indeed, in its brief and

at oral argument, the Attorney General for the State of Alabama conceded that the

trial court instructed the jury that “specific intent must be inferred.” (State’s Br. 13

(emphasis added).) On June 13, 2014, the Alabama Court of Criminal Appeals

reversed Mr. Townes’s conviction and sentence, finding that the trial court’s jury

instruction improperly required the jury to presume that Mr. Townes possessed the

specific intent to kill, which was the critical issue at Mr. Townes’s trial. Townes v.

State, No. CR–10–1892, at 5 (Ala. Crim. App. June 13, 2014) (opinion withdrawn).

It was not until after the Court of Criminal Appeals’s opinion, on June 20, 2014,

that the circuit clerk filed a notice from Judge Anderson stating that he had listened

to an audio recording of the jury instructions and determined that he had said “may”

and not “must.” (SSSR. 22-23.) After receiving briefs from the parties, the Court of

Criminal Appeals determined that a second court reporter should listen to the audio

recording and transcribe the jury instructions. (SSSSR. 3-4.) In its remand order

directing the trial court to appoint a different court reporter to transcribe the jury

instructions, the Court of Criminal Appeals explained that it had reversed Mr.

Townes’s capital conviction based on the certified record containing a mandatory

presumption (“intent must be inferred”), but that the trial court, who had sentenced

Mr. Townes to death and who would be appointing the new court reporter, had

12

“notified this Court that there may have been an error in the transcription,” and that

the trial court claimed to have used the word “may,” not “must.” (SSSSR. 3-4.)

The second court reporter filed a 56-page supplemental record of the

guilt/innocence phase jury instructions. (SSSSR. 5-60.) The only difference between

the certified record and the newly transcribed record was a change of the word “must”

to “may” in the intent instruction. (SSSSR. 25.) Subsequently, the Court of Criminal

Appeals found that “no error, plain or otherwise, resulted from the circuit court’s jury

instructions regarding specific intent.” Townes v. State, No. CR-10-1892, 2015 WL

9263802, at *6 (Ala. Crim. App. Dec. 18, 2015). While acknowledging ten other errors,

id. at *7-8, 20, 22, 25, 28, 30, 32, 36-37, 39-40, the Court of Criminal Appeals found

that each was harmless and affirmed Mr. Townes’s conviction and death sentence. Id.

at *52.

Mr. Townes then sought review in the Alabama Supreme Court on several

questions, including whether the jury instructions, and the process by which the record

of those instructions was amended, violated the Eighth and Fourteenth Amendments.

The Alabama Supreme Court denied Mr. Townes’s petition for a writ of certiorari over

one dissent. Ex parte Townes, No. 1160523 (Ala. Oct. 20, 2017). Mr. Townes now

respectfully petitions this Court for a Writ of Certiorari to review the judgment of the

Alabama Court of Criminal Appeals in this case.

13

REASONS FOR GRANTING THE WRIT

I.

REVIEW SHOULD BE GRANTED TO DETERMINE WHETHER THE

PROCESS BY WHICH THE ALABAMA COURTS AMENDED THE

CERTIFIED RECORD AFTER REVERSIBLE ERROR HAD BEEN FOUND

VIOLATES DUE PROCESS AND THE REQUIREMENT FOR HEIGHTENED

RELIABILITY IN CAPITAL CASES.

This Court has “emphasized repeatedly the crucial role of meaningful appellate

review in ensuring that the death penalty is not imposed arbitrarily or irrationally.”

Parker v. Dugger, 498 U.S. 308, 321 (1991). A critical component of meaningful

appellate review is an accurate record. See, e.g., Griffin v. Illinois, 351 U.S. 12, 19

(1956) (holding that state courts could not refuse to provide transcript to indigent

defendant); see also Hardy v. United States, 375 U.S. 277, 280 n.3 (1964) (quoting

Bennett Boskey, The Right to Counsel in Appellate Proceedings, 45 Minn. L. Rev. 783,

792-93 (1961)) (“Frequently, issues simply cannot even be seen - let alone assessed without reading an accurate transcript. Particularly is this true of questions relating

to evidence or to the judge’s charge . . .”).

Where the record is disputed, this Court has held that due process requires that

a defendant have a “voice in determining” its accuracy. Chessman v. Teets, 354 U.S.

156, 164 (1957). In Chessman, the defendant was allowed to review and suggest

changes to the proposed record but was not allowed to attend the hearing at which the

record was settled. Id. at 159-60. This Court held that “the ex parte settlement of this

state court record violated petitioner’s constitutional right to procedural due process.”

Id. at 162; see also Mitchell v. Wyrick, 698 F.2d 940, 942 (8th Cir. 1983) (“We find that

Mitchell and his attorney fully participated in the state transcript proceeding as

14

required under Chessman, and that seven of the nine requested changes were made

at that hearing.”).

Here, the Alabama Court of Criminal Appeals ordered the trial court to appoint

a second court reporter, who was not present at Mr. Townes’s trial, to review an

audiotape and submit a new version of the guilt/innocence phase jury instructions.

(SSSSR. 3-4.) In its remand order, the lower court explained that it had reversed Mr.

Townes’s capital conviction based on the certified record containing a mandatory

presumption (“intent must be inferred”), but that the trial judge, who had sentenced

Mr. Townes to death and who would be appointing the new court reporter, had

“notified this Court that there may have been an error in the transcription,” and that

the judge claimed to have used the word “may,” not “must.” (SSSSR. 3-4.) In response

to this order, the court reporter submitted a transcript of just the guilt/innocence phase

jury instructions in which the only change was the word “must” to “may.” (SSSSR. 25.)

The process by which one word in the certified record was changed, only after

reversible error had been found, falls far short of this Court’s requirement that such

proceedings “satisfy[] the requirements of procedural due process.” Chessman, 354

U.S. at 165; see also Cole v. Arkansas, 333 U.S. 196, 202 (1948) (reversing where

defendants were denied procedural due process on appeal).

Moreover, Chessman and this Court’s subsequent precedent make clear that

states cannot delegate to the trial court the decision of whether that same court

15

committed reversible error.4 See Draper v. Washington, 372 U.S. 487, 499-500 (1963)

(holding that allowing trial judge to prevent appeal by deeming it frivolous violated due

process); Eskridge v. Washington State Bd. of Prison Terms and Paroles, 357 U.S. 214,

216 (1958); Chessman, 354 U.S. at 162. As this Court recognized in Eskridge, “[t]he

conclusion of the trial judge that there was no reversible error in the trial cannot be an

adequate substitute for the right to full appellate review.” 357 U.S. at 216; see also

Commonwealth v. Dougherty, 18 A.3d 1095 (Pa. 2011) (finding judge erred in denying

request for recusal); id. at 1096 (Baer, J. concurring) (“Litigants and the appellate

courts alike have but one vehicle through which to examine a trial court’s proceedings

for potential irregularities: the certified record. Therefore, to alter a record is to strike

at the very pillars of meaningful appellate review, and concomitantly therewith, the

basic tenets of due process.”).

Allowing the trial judge in this case to correct one word of a voluminous record after the decision had been issued5 - is particularly problematic given that the

4

The rules that govern criminal appeals in Alabama do not provide the parties with

access to any audio recordings of the trial proceedings. See, e.g., Ala. R. App. P. 10.

Thus there is generally no opportunity for defendants to review such recordings to

determine whether discrepancies exist between the recordings and the certified record.

5

In another capital case, Judge Anderson directed a clerk to review an audiotape and

file a certificate changing “inference” to “innocence” in the jury instructions after the

Alabama Supreme Court had issued its opinion but prior to rehearing on direct appeal.

See Hammonds v. Comm’r, Ala. Dep’t of Corr., No. 15-11797, 2017 WL 4675707, at *3-4

(11th Cir. Oct. 17, 2017); see also Hammonds v. Allen, 849 F.Supp.2d 1262, 1305 (M.D.

Ala. 2012). In reviewing these instructions, the Eleventh Circuit Court of Appeals

considered the original certified record, and not the corrected record, in part because:

Considering corrected page 228 in these circumstances could create a

perverse incentive for a party to withhold a key fact that is otherwise lost

16

Alabama appellate courts consistently deny defendants’ untimely requests to

supplement the appellate records. See McGriff v. State, 908 So. 2d 961, 992, 1024 (Ala.

Crim. App. 2000) (affirming capital conviction where defendant failed to supplement

record prior to appeal; “It is the appellant’s duty to point out deficiencies in the record

within the time allowed by the Rules of Appellate Procedure.”), overruled on other

grounds by Ex parte McGriff, 908 So. 2d 1024 (Ala. 2004); Armstrong v. State, 710 So.

2d 531, 532-33, 535 (Ala. Crim. App. 1997) (denying Batson claim where trial court’s

reasoning “inexplicably missing” from record and defendant failed to file motion to

supplement); Allison v. State, 645 So. 2d 358, 360 (Ala. Crim. App. 1994) (denying

appeal; “There has been no request to supplement the record on appeal and the time

for so doing has expired.”); M.B. v. State, 630 So. 2d 490, 490-91 (Ala. Crim. App. 1993)

(denying challenge to adequacy of record where defendant failed to object to

certification of transcript); L.W.C. v. State, 576 So. 2d 681, 682-83 (Ala. Crim. App.

1991); William v. State, 548 So. 2d 516, 517-18 (Ala. Crim. App. 1988); Boyd v. State,

542 So. 2d 1247, 1258-59, 1260 (Ala. Crim. App. 1988) (denying defendant’s request to

supplement record because of failure to file proper motion; affirming conviction and

death sentence); Lipscomb v. State, 68 So. 2d 862, 864 (Ala. Ct. App. 1953); see also Ex

parte Frazier, 758 So. 2d 611, 616 (Ala. 1999) (affirming capital conviction where

in a voluminous record until the most opportune moment, regardless of

whether that moment arises before the state has completed its review.

Id. at *6; see also Burks v. United States, 437 U.S. 1, 17 (1978) (“[T]he purposes of the

[Double Jeopardy] Clause would be negated were we to afford the government an

opportunity for the proverbial ‘second bite at the apple.’”).

17

defendant failed to supplement record with race of potential jurors); Flowers v. State,

799 So. 2d 966, 994 (Ala. Crim. App. 1999) (same). In William, the Court of Criminal

Appeals stated:

Here, the appellant attempts to cast the burden of ‘correcting’ the record

upon this Court by having us review the tape recordings of the trial court

reporter. However, corrections to the record should be made before that

record is ever submitted to an appellate court.

548 So. 2d at 518 (affirming conviction). In Lipscomb, the Court of Criminal Appeals

found that it could not review an issue because the relevant exhibits were not a part

of the certified record. 68 So. 2d at 863. On rehearing, the defendant attempted to

supplement the record with the exhibits. Id. at 864. The Court of Criminal Appeals

refused to consider the exhibits because doing so “would tend to encourage carelessness

in appellate procedure and unduly prolong litigation.” Id.

In L.W.C., the defendant filed a motion in the Court of Criminal Appeals to

strike two transfer orders from the certified record. 576 So. 2d at 682. Defense counsel

attached an affidavit attesting to the fact that the orders should not have been

included in the record on appeal. Id. The Court of Criminal Appeals denied the motion

to amend the record and found:

The certificates of a trial court clerk which certify that instruments and

a transcript are true and correct are accepted as the sole and conclusive

evidence of the proceedings in the circuit court for purposes of appeal.

...

The longstanding rule of [the Alabama Supreme Court] has been that the

Supreme Court and the Court of Criminal Appeals is remitted to the

consideration of the record alone and absolute truth must be imputed to

it, and if it is incomplete or incorrect, amendment or correction must be

sought by appropriate proceedings rather than by impeachment on

hearing in the appellate court, by statements in brief, by affidavits, or by

18

other evidence not appearing in the record . . . .

Id. at 682-83 (quotation marks, brackets, and citations omitted).

There is no precedent in Alabama for the actions taken in Mr. Townes’s case,

and for good reason. Permitting substantive changes to the record after the record had

been certified and after reversible error had been found violated his right to due

process and the requirement for heightened reliability in capital cases. Parker, 498

U.S. at 321; Woodson v. North Carolina, 428 U.S. 280, 305 (1976); Chessman, 354 U.S.

at 162; Griffin, 351 U.S. at 19.

II.

THIS COURT SHOULD GRANT CERTIORARI TO DETERMINE WHETHER

THE SUBSTANTIAL RISK THAT THE JURY WAS IMPROPERLY

INSTRUCTED ON THE CRITICAL ISSUE OF INTENT VIOLATES THE

EIGHTH AND FOURTEENTH AMENDMENTS.

The Due Process Clause of the Fourteenth Amendment protects against a

conviction except where the State has proven beyond a reasonable doubt every element

of the offense. See, e.g., In re Winship, 397 U.S. 358, 364 (1970). This requirement

prohibits the use of evidentiary presumptions in a jury charge that have the effect of

relieving the State of its burden of persuasion beyond a reasonable doubt of every

essential element of a crime. Sandstrom v. Montana, 442 U.S. 510, 523-24 (1979). In

Sandstrom, this Court determined that a jury instruction that “the law presumes that

a person intends the ordinary consequences of his voluntary acts” was a mandatory

presumption which served to relieve the State’s burden of persuasion on the element

of intent, and was therefore unconstitutional. Id. at 512, 523-24; see also Carella v.

California, 491 U.S. 263, 266 (1989); Francis v. Franklin, 471 U.S. 307, 325, 326 (1985).

19

The certified record of Mr. Townes’s trial established that, at the conclusion of

the guilt/innocence phase, the trial court erroneously instructed the jury that the

specific intent to kill “must be inferred if the act was done deliberately and death was

reasonably to be apprehended or expected as a natural and probable consequence of the

act.”

(R. 824 (emphasis added).)

As the Alabama Court of Criminal Appeals

recognized, this instruction directed the jury that once it was convinced of the predicate

facts – that Mr. Townes acted deliberately and that death was a reasonable

consequence – it was required to conclude that Mr. Townes had the specific intent to

kill, without consideration of any of the other evidence submitted by either the State

or the defense. Townes v. State, No. CR–10–1892, at 12-13 (Ala. Crim. App. June 13,

2014) (opinion withdrawn) [hereinafter Townes I] . Because this instruction created

a mandatory presumption on the critical issue of intent, it relieved the State’s burden

of proof on this issue, in violation of the Due Process Clause. Carella, 491 U.S. at 266;

Franklin, 471 U.S. at 325; Sandstrom, 442 U.S. at 523-24; see also Townes I, at 14.

Alabama law is clear that a necessary element of capital murder is the specific

intent to kill. See, e.g., Brown v. State, 72 So. 3d 712, 715 (Ala. Crim. App. 2010). In

Mr. Townes’s case, the only issue before the jury was whether he possessed the specific

intent to kill or whether, as defense counsel contended, the jury should find Mr.

Townes “guilty of something other than capital murder” because he only intended to

rob the victim but did not have the specific intent to kill. (R. 398-99); see also Townes

I, at 14-15 (“The issue of intent was very much at issue in this case. In fact, Townes’s

intent to kill was the only issue left for the jury to decide.” (citations omitted)). In light

20

of the centrality of the intent issue and the evidence that Mr. Townes shot to scare the

victim and not to kill, the Court of Criminal Appeals reversed Mr. Townes’s conviction

and sentence. Townes I, at 14-19; see also Carella, 491 U.S. at 270 (Scalia, J.,

concurring in the judgment) (quoting Connecticut v. Johnson, 460 U.S. 73, 85-86

(1983)) (“‘An erroneous presumption on a disputed element of a crime renders

irrelevant the evidence on the issue because the jury may have relied upon the

presumption rather than upon that evidence. If the jury may have failed to consider

evidence of intent, a reviewing court cannot hold that the error did not contribute to

the verdict.’”).

A second court reporter, who was not present at Mr. Townes’s trial, has now

reported that the judge instructed that the intent to kill “may be inferred if the act was

done deliberately and death was reasonably to be apprehended or expected as a natural

and probable consequence of the act.” (SSSSR. 21 (emphasis added).) This court

reporter did not indicate whether any audio recording was clear or whether the jury

may have misunderstood the instructions. As a consequence, there is now a conflict

between the certified record - produced and certified by the court reporter present at

the trial and then reviewed and relied upon over the next two and a half years by

undersigned counsel, the State, and the appellate courts during the drafting of

multiple briefs and oral argument that led to the lower court decision reversing Mr.

Townes’s conviction and sentence - and the “corrected record” - produced by a court

reporter who was not present at the trial.

When confronted with the possibility that jurors misunderstood instructions on

21

a critical issue, this Court has found that those instructions violate the Constitution.

See Shafer v. South Carolina, 532 U.S. 36, 53 (2001) (reversing where trial court’s

instructions “did nothing to ensure that the jury was not misled”); Mills v. Maryland,

486 U.S. 367, 381 (1988) (reversing where there was “at least a substantial risk that

the jury was misinformed”); Sandstrom, 442 U.S. at 519 (reversing while

acknowledging that “[w]e do not reject the possibility that some jurors may have

interpreted the challenged instruction as permissive”). The conflicting accounts of the

jury instructions at issue here do not resolve whether the jury may have applied a

mandatory presumption in finding Mr. Townes guilty of capital murder. Thus the

intent instructions do not satisfy the prohibition on mandatory presumptions or the

requirement for heightened reliability in capital proceedings. See Franklin, 471 U.S.

at 325 (reversing conviction “[b]ecause a reasonable juror could have understood the

challenged portions of the jury instruction in this case as creating a mandatory

presumption”); Sandstrom, 442 U.S. at 519 (“However, the fact that a reasonable juror

could have given the presumption conclusive or persuasion-shifting effect means that

we cannot discount the possibility that Sandstrom’s jurors actually did proceed upon

one or the other of these latter interpretations.”); Woodson v. North Carolina, 428 U.S.

280, 305 (1976) (“Because of that qualitative difference [between the death penalty and

imprisonment], there is a corresponding difference in the need for reliability in the

determination that death is the appropriate punishment in a specific case.”). As this

Court held in Andres v. United States, 333 U.S. 740, 752 (1948):

That reasonable men might derive a meaning from the instructions given

22

other than the proper meaning [ ] is probable. In death cases doubts such

as those presented here should be resolved in favor of the accused.

Id. at 752 (reversing capital conviction); see also Mills, 486 U.S. at 376 (“In reviewing

death sentences, the Court has demanded even greater certainty that the jury’s

conclusions rested on proper grounds.”).

CONCLUSION

For the foregoing reasons, Petitioner prays that this Court grant a writ of

certiorari to the Alabama Court of Criminal Appeals.

Respectfully Submitted,

/s/ Angela L. Setzer

ANGELA L. SETZER

Counsel of Record

BENJAMIN H. SCHAEFER

122 Commerce Street

Montgomery, AL 36104

(334) 269-1803

asetzer@eji.org

bschaefer@eji.org

Counsel for Petitioner

February 20, 2018

23