Petition for Writ of Certiorari — Sims v. Alabama

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856-8 47 \

No.

In The

Supreme Court of the United States

October Term, 1988

>

OSCAR SIMS,

Petitioner,

vs.

STATE OF ALABAMA,

Respondent.

-

PETITION FOR A WRIT OF CERTIORARI

TO THE ALABAMA SUPREME COURT

>

Lynn E. QuINLey

Attorney at Law

Post Office Box 967

Daphne, Alabama 36526

(205) 626-3120

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

(a) Whether the Petitioner’s constitutional rights, as

guaranteed under the Constitution of the State of Ala-

bama and the United States Constitution, to a thorough

and sifting cross-examination of the alleged victim was

violated by the trial court’s unilateral denial of the Peti-

tioner’s line of cross-examination as to the motive under-

lying the alleged victim’s testimony?

(b) Whether the Alabama Supreme Court failed to

properly examine the Petitioner’s claim that he was

denied effective assistance of counsel in the trial court

under the parameters as set forth in Zuck v. State, 588 F.2d

436, 440 which states “that courts are compelled to exam-

ine every potential infringement of that right with the

most exacting scrutiny”.

ii

PARTIES

The following list contains the names of all parties to

the proceedings in the Courts below.

1. Chief Justice C. C. Torbert

Associate Justice Gorman Houston

Associate Justice Hugh Maddox

Associate Justice Reneau P. Almon

Associate Justice Sam A. Beatty

Supreme Court of Alabama

Post Office Box 218

Montgomery, Alabama 36101

2. Presiding Judge William M. Bowen, Jr.

Judge John Tyson, III

Judge Sam Taylor

Judge John Patterson

Judge H. Ward McMillan

Alabama Court of Criminal Appeals

Post Office Box 351

Montgomery, Alabama 36101

3. Judge William H. Baldwin

Circuit Court Judge of Covington County,

Alabama

Covington County Courthouse

Andalusia, Alabama 36420

4. The Honorable Eugina Loggins

District Attorney for Covington County, Alabama

Covington County Courthouse

Andalusia, Alabama 36420

5. Mr. Larry R. Grissett

Attorney at Law

Post Office Box 423

Opp, Alabama 36467

6. The caption contains the names of all other par-

ties to the proceedings in the courts below.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ............ 200000000005: i

| errr rrr rr rrrrrr rrr rrrerrrr ii

TABLE OF CONTENTS. .........---0000seeeseeeee: iii

TABLE OF AUTHORITIES. ............---000000555 iv

OPINIONS BELOW ...........-eeeeeeeeeeeeeeeees 1

JURISDICTION. ......0cccccccccccccccccccscccccces 1

CONSTITUTIONAL PROVISIONS INVOLVED...... 2

STATEMENT OF THE CASE

BE PUES acc cccccccccccccecccccccccccesccnes 2

PROCEEDINGS BELOW .............++++++++5 3

REASONS FOR GRANTING THE WRIT .........-- 5

The decision below fails to properly address

the Petitioner’s denial of his constitutional right to

a thorough and sifting cross-examination of the

alleged victim. ............-.eeceee cece eee eeeeeee 5

The decision below failed to properly

address the Petitioner’s claim that he was denied

effective assistance of counsel in the trial court.. 8

PU MEIIN on caccccccesescacccccccncccccccesese 14

iv

TABLE OF AUTHORITIES

Cases: Page

Bonner v. State, 389 So.2d 174 (Ala.Crim.App.

PN CRS andbcesscassegendatisdd snndabetdeciseeses 12

Collins v. State, 364 So.2d 368, 374 (Ala.Crim.App.

SPAS kccbcs cnbdadde cecdscadccissbessareveres<ce 12

Crawford v. State, 479 So.2d 1349 (Ala.Crim.App.

Is bib os ccnedinnsensdecksstbasesdckses oti ven ove 12

Cruse v. State, 474 So.2d 106 reversed ex parte Cruse,

474 So.2d 109, on remand 474 So.2d 11

GERAIS GUD aonb atnnvenssasanesssedacasace 10

Haynes v. State, 461 So.2d 869 (Ala.Crim.App.

BE cabs ncucanssenaseasanhensescexentatenusr sees 10

High v. Rhay, 519 F.2d 109 (9th Cir. 1975) ........... 13

Johnson v. United States, 418 A.2d 136 (D.C. App.

Save dsnchdns chavcenenssbsanseanesbbccncennedes 7

State v. Olson, 291 N.W. 2d 203 (Minn. 1980)......... 8

Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed. 2d 674 (1964) .............22000. 9, 13

United States v. Alvarez-Lopez, 559 F.2d 1155 (9th

Ea DUE OD ibicdcdnuedegassassRacstanebawkeesecccsss 6

United States v. Berkowitz, 662 F.2d 1127 (5th Cir.

Swe ddshadddenwubeneuthsicceveccudeensdecsncess 7

United States v. Hall, 653 F.2d 1002 (5th Cir. 1981) ..... 7

Zuck v. State, 588 F.2d 436 (C.A. Ala. 1979)

rehearing denied, 591 F.2d 201 cert. den. 444 U.S.

S35 100 SAX. GS, G2 LEG. Be 42 . 2... cc ceccccce 8, 9

needa

Vv

TABLE OF AUTHORITIES-—Continued

Page

MISCELLANEOUS:

United States Constitution Sixth Amendment

saeeudedndadabese cas eee eee 2, 9, 12, 14

United States Constitution Fourteenth Amendment

psec ukiwn ceeds liad 2, 9, 12, 14

Code of Alabama SECTION 13A-6-62 ...........--.545- 3

State of Alabama Constitution.............00+++eeeeeees 5

OPINIONS BELOW

1. The Certificate of Judgment of the Supreme

Court of Alabama denying Petitioner’s Petition for Writ

of Certiorari is reproduced as Appendix A.!

2. The Order of the Alabama Court of Criminal

Appeals overruling Petitioner’s Application for Rehear-

ing and the Request for Finding of Additional Facts is

reproduced as Appendix B.

3. The Order of the Alabama Court of Criminal

Appeals affirming the Petitioner’s conviction without an

opinion is reproduced as Appendix C.

4. Petitioner’s Notice of Appeal is reproduced as

Appendix D.

5. The Petitioner’s Judgment of Sentence is repro-

duced as Appendix E.

6. The Petitioner’s conviction is reproduced as

Appendix F.

-.

SO

JURISDICTION

The judgment of the Alabama Supreme Court, which

is sought to be reviewed, was rendered on July 15, 1988.

See Appendix A. Petitioner avers that the jurisdiction of

this Court is invoked under 28 U.S.C. Section 1257(3).

-..

7

1 The appendix to this petition is separately bound pur-

suant to Rule 21.1(k).

tattle

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment to the United States

Constitution:

“in all criminal prosecutions, the accused shall

enjoy the right . . . to be confronted with the

witnesses against him; . . . and to have the assis-

tance of counsel for his defense.”

The Fourteenth Amendment to the United States

Constitution:

“... no State shall . . . deprive any person of life,

liberty or property, without due process of

law...”

,%

-

STATEMENT OF THE CASE

THE FACTS

Oscar Sims, the Petitioner, was indicted for the

offense of rape in the second degree. (CR. 1, 54).? Peti-

tioner entered a plea of not guilty and has maintained his

innocence throughout the course of these proceedings.

(CR. 4).

Only one pre-trial motion was filed by defense coun-

sel, namely, a Motion to Produce. (CR. 5-6).

The alleged victim in this cause is the daughter of

Petitioner. (R. 7). She stated that her parents were in the

2 The facts recited are generally taken from the Clerk’s

Record and the trial court’s transcript. References to pages in

the Clerk’s Record shall be begun by “CR” and references to

pages in the transcript shall be begun by “R”.

process of obtaining a divorce at the time of the alleged

incident. (R. 11). She further stated that on the evening of

the alleged incident her father, Petitioner, had informed

her of his intent to follow through with the divorce and,

subsequently, his intent to marry a much younger

woman. (R. 10). The witness admitted being upset over

her parents’ divorce action. (R. 11).

The alleged victim recalled having testified at her

parents’ divorce hearing. (R. 32). The State objected to

any further questioning along that line based on rele-

vancy. (R. 32). The trial court indicated that it would

sustain the objection to any further questioning in regard

to the divorce. (R. 32). Defense counsel requested an

opportunity to make an offer of proof as to the witness’

previous testimony. (R. 32). A “document” was handed to

the trial judge and a bench conference occurred outside

the hearing of the court reporter. (R. 33). The trial court

then sustained the State’s objection to this line of ques-

tioning. (R. 33).

There was no Motion for Judgment of Acquittal at

the close of the State’s evidence nor after the close of the

State’s rebuttal testimony. Only one jury instruction was

submitted by the defense to the court and said instruc-

tion, concerning reasonable doubt, was refused by the

trial court. (CR. 15).

Lp.

wv

PROCEEDINGS BELOW

Petitioner was indicted for the offense of rape in the

second degree, a violation of Section 13A-6-62, Code of

Alabama, (1975). Oscar Sims entered a plea of not guilty

——

to the offense by filing a written plea of not guilty and

waiver of arraignment. (CR. 4). Only one pre-trial motion

was filed by defense counsel, namely, a Motion to Pro-

duce. (CR. 5-6).

On April 29, 1987, defense counsel filed requested

voir dire questions and one requested jury instruction.

(CR. 13-15). Trial commenced on April 29, 1987, with the

prosecutrix, daughter of Petitioner, being the only wit-

ness to testify on behalf of the State. (R. 7-47). The

defense called four witnesses including the Petitioner. (R.

49-106). One rebuttal witness was called on behalf of the

State. (R. 106-108).

Oscar Sims was found guilty as charged after twenty

eight minutes of deliberation by the jury. (R. 118-119).

Sentencing was postponed pending a pre-sentence inves-

tigation. (R. 120).

The Sentencing Hearing was held on June 8, 1987, at

which time Oscar Sims was sentenced to ten (10) years in

the State Penitentiary. (R. 124-125). Oral Notice of Intent

to Appeal was given at completion of the Sentencing

Hearing. (R. 125). At this point, the trial court determined

Oscar Sims to be indigent and appointed trial counsel,

the Honorable Larry Grissett, to represent him on appeal.

(CR. 49). A Motion for New Trial was filed on behalf of

Oscar Sims and denied by operation of law. (CR. 19-40,

54).

On or about the 9th day of October, 1987, appointed

counsel filed an initial brief on behalf of Petitioner raising

three issues; however, the entire argument on appeal

consisted of less than two typewritten pages. A Motion

bi.

for Leave to File Supplemental Brief, Request for Enlarge-

ment of Time and Notice of Appearance was filed by

additional counsel with the Alabama Court of Criminal

Appeals on or about the 27th day of October, 1987. Per-

mission to file a supplemental brief was granted and

additional time was allowed for preparation of the sup-

plemental brief. The State of Alabama, by and through

the Office of the Attorney General, filed its reply brief on

or about the 18th day of December, 1987, although Peti-

tioner’s counsel was not served with a copy until Decem-

ber 28, 1987.

On April 12, 1988, the Alabama Court of Criminal

Appeals affirmed the Petitioner’s conviction on appeal

without an opinion. An Application for Rehearing and

Rule 39(k) Motion were filed in a timely fashion with the

Court of Criminal Appeals. On May 10, 1988, the Appli-

cation for Rehearing was overruled and the Rule 39(k)

Motion was denied, each without an opinion.

On May 24, 1988, Petitioner filed a Petition for Writ

of Certiorari with the Alabama Supreme Court and a

Brief in Support thereof. The Petition for Writ of Cer-

tiorari was denied by the Supreme Court of Alabama on

or about July 15, 1988 without an opinion.

,™

-

REASONS FOR GRANTING THE WRIT

1. Whether the Petitioner’s constitutional rights, as

guaranteed under the Constitution of the State of Ala-

bama and the United States Constitution, to a thorough

and sifting cross-examination of the alleged victim was

violated by the trial court’s unilateral denial of the Peti-

tioner’s line of cross-examination as to the motive under-

lying the alleged victim’s testimony?

The Petitioner, Oscar Sims, respectfully submits that

the Supreme Court of Alabama erred in affirming his

conviction based upon the trial court’s abuse of discre-

tion by severely limiting defense counsel’s cross-exam-

ination of the alleged victim. This issue was of

paramount importance in that the alleged victim was the

Petitioner’s daughter. Furthermore, the Petitioner and his

estranged wife were separated and in the process of

obtaining a divorce at the time the allegations were made.

Finally, on the night the alleged offense took place the

Petitioner had informed his daughter that he intended to

marry a much younger woman once the divorce became

final. The trial court repeatedly sustained the State’s

objections to defense counsel’s cross-examination of the

prosecutrix concerning these circumstances, the Alabama

Court of Criminal Appeals subsequently affirmed Peti-

tioner’s conviction without the benefit of an opinion, and

the Supreme Court of Alabama denied Petitioner’s Peti-

tion for Writ of Certiorari.

The right to extensive cross-examination of a govern-

mental witness which is designed to reveal bias or preju-

dice of said witness is compelled by the confrontation

clause of the Sixth Amendment of the United States.

United States v. Alvarez-Lopez, 559 F.2d 1155 (9th Cir.

1977). The Sixth Amendment requirement is measured by

a pragmatic, qualitative approach rather than a quantita-

tive analysis; however, the defendant must be allowed an

opportunity to expose facts to the jury from which they,

as the sole triers of fact and credibility, may appropriately

a eee ee

draw inferences relating to the reliability of the witness.

United States v. Berkowitz, 662 F.2d 1127 (5th Cir. 1981).

When a cross-examination of a key witness by the defen-

dant is cut off with respect to a crucial line of questioning

concerning the witness’ bias or motive to testify and her

testimony is of crucial and perhaps determinative impor-

tance to the prosecution’s case, the defendant is effec-

tively precluded from examining the witness as to her

motive for testifying against him in violation of the Sixth

Amendment’s mandate that some meaningful degree of

cross-examination be allowed in the first instance. Johnson

v. United States, 418 A.2d 136 (D.C. App. 1980).

Admittedly, the trial court has considerable discre-

tion in limiting the scope and extent of cross-examination

in a criminal trial but must not do so to the extent that the

defendant’s Sixth Amendment right of confrontation is

impinged. United States v. Hall, 653 F.2d 1002 (5th Cir.

1981). It is a fundamental element of cross-examination

that the defendant must be permitted to expose a wit-

ness’ possible motivations for false testimony. Id.

In the case at hand, the Petitioner was effectively

precluded from cross-examining the prosecutrix as to a

possible bias, interest or motive for providing false testi-

mony. It is clear, from the record, that a very strained

relationship existed between the Petitioner and his

daughter, the alleged victim. Not only were the parents of

the alleged victim in the process of obtaining a divorce

but the Petitioner had informed his daughter that once

the divorce was final he intended to marry a much youn-

ger woman. Therefore, the questions attempted to be

asked by defense counsel on cross-examination were

wholly relevant to the issues of the trial and had a great

bearing on the credibility of the prosecutrix’s testimony.

Failure to allow such questioning denied Petitioner of his

right to present to the jury a clear and concise picture of

the facts and circumstances surrounding this case thus

depriving the jury of essential information necessary for

a fair and accurate deliberation in this cause.

Denial of the right of confrontation can be harmless

only when it is harmless beyond a reasonable doubt and

the remaining evidence must be overwhelmingly persua-

sive of the defendant’s guilt. State v. Olson, 291 N.W. 2d

203 (Minn. 1980). In the instant case, the State’s only

evidence came from the alleged victim whom the Peti-

tioner was not allowed to effectively cross-examine.

Therefore, there can be no harmless error because there

was no “remaining evidence”.

For the aforementioned reasons, the Petitioner urges

this Honorable Court to review the decision of the Ala-

bama Supreme Court which denied Petitioner’s Writ of

Certiorari. Further, Petitioner prays that this Court will

grant this Petition for Writ of Certiorari, proceed to

review the matters complained of, and reverse the judg-

ment of the Supreme Court of the State of Alabama.

2. Whether the Alabama Supreme Court failed to

properly examine the Petitioner’s claim that he was

denied effective assistance of counsel in the trial court

under the parameters as set forth in Zuck v. State, 588 F.2d

436, 440 which states “that courts are compelled to exam-

ine every potential infringement of that right with the

most exacting scrutiny”.

The Sixth and Fourteenth Amendments to the United

States Constitution guarantee reasonably effective assis-

tance of counsel to a defendant in a criminal proceeding.

This right is so vital to a fair trial that courts are com-

pelled to examine every potential infringement of this

right with the most exacting scrutiny. Zuck v. State of

Alabama, 588 F.2d 436 (C.A.Ala. 1979), rehearing denied,

591 F.2d 102, cert.den. 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.

2d 42. Petitioner contends that the Alabama Court of

Criminal Appeals as well as the Supreme Court of the

State of Alabama failed to comply with the requirements

mandated by Zuck, therefore this Court should grant

certiorari in this case and reverse the decision of the

Alabama appellate courts. Petitioner contends that he has

met the standard established in the case of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674

(1984) thereby establishing his claim of ineffective assis-

tance of counsel.

The first requirement under Strickland is that the

Petitioner identify the acts or omissions of counsel which

were outside the wide range of professionally competent

assistance. Petitioner alleges that trial counsel failed to

file sufficient and adequate pre-trial motions on his

behalf, failed to request a directed verdict at the close of

the State’s evidence or prior to submission of the case to

the jury, failed to request adequate and necessary jury

charges, failed to make timely objection as to the jury

instruction, failed to make appropriate objection to usage

by the District Attorney of the word “rape”, failed to

make an offer of proof in connection with the limited

cross-examination of the prosecutrix, and, finally, filed

10

such an inadequate initial Brief on Appeal that the inef-

fective assistance of counsel claim is virtually a per se

violation of Petitioner’s constitutional guarantees.

Prior to trial, defense counsel filed only one motion

on behalf of Petitioner. (CR. 5-6). Notwithstanding the

rule that counsel is not required to waste the Court’s time

with futile and frivolous motions, Petitioner urges that

additional motions were necessary in this cause. Cruse v.

State, 474 So.2d 106, reversed ex parte Cruse, 474 So.2d 109,

on remand 474 So.2d 11 (Ala.Crim.App. 1984). At a mini-

mum, defense counsel ought to have obtained a report

from the social worker who was tangentially involved in

the investigation of this offense. (R. 71). Defense counsel

ought to have requested that the Court appoint a guard-

ian ad litem to represent the interest of the alleged victim

in this cause. An additional pre-trial motion that is man-

dated in cases of this nature is a Request for Disclosure of

Psychiatric History and for psychological or other exam-

inations of the alleged victim. This motion was partic-

ularly important in that the alleged victim was utilizing

mental health facilities at the time of the trial. (R. 32).

Petitioner recognizes that objections to testimony or

argument are matters of trial strategy and, absent a clear

showing of improper and inadequate representation, are

to be left to the judgment of trial counsel. Haynes v. State,

461 So.2d 869 (Ala.Crim.App. 1984). However, in this

case, trial counsel failed to object to the District Attor-

ney’s continuous and prejudicial use of the word “rape”

throughout the course of the trial and in the presence of

the jury. (R. 18, 43, 48, 78, 99, 100, 102, 103). Defense

counsel failed to object to the use of this word nor did he

move to restrict or exclude references to this term. Each

<i

11

of the statutory elements of the crime of rape must be

proved beyond a reasonable doubt and to a moral cer-

tainty prior to conviction. Therefore, when the District

Attorney repeatedly utilized the word “rape” she

implanted within the minds of the jury that the burden of

proof had been satisfied as to each element. Further, use

of this word was inflammatory and prejudicial in the

minds of the jury thereby depriving the Petitioner of a

fair and impartial trial. Failure of defense counsel to

object to this conduct, when considered in conjunction

with other acts and omissions, demonstrates the ineffec-

tive assistance of counsel claim.

It is further demonstrated that Petitioner was denied

effective assistance of counsel in that only one request for

jury charge was submitted to the trial court. (CR. 15). The

failure to request additional instructions, including those

on the credibility of a child witness and potential lesser

included offenses, effectively waived the Petitioner’s

right to assign error to the trial court’s charge. Further,

defense counsel's failure to make timely objection related

to the inadequacy of the jury instruction again failed to

properly preserve that issue for review and, arguably,

waived the Petitioner’s right to raise this issue on appeal.

An additional illustration of defense counsel's inef-

fectiveness at trial is based upon his failure to make an

offer of proof in connection with the anticipated testi-

mony of the prosecutrix. (R. 32-33). As addressed in the

preceding issue, the trial court had consistently sustained

the State’s objections to defense counsel's attempt to con-

duct a thorough and sifting cross-examination of the

alleged victim.

12

“The rule is well established that when an objec-

tion is sustained to a question asked on cross-

examination, the questioning party must make an

offer of proof, calling the attention of the court to

the expected answer and the materiality of the

answer. Otherwise, the party cannot predicate an

appeal upon the sustaining of the objection as an

erroneous ruling.”

Collins v. State, 364 So.2d 368, 372 (Ala.Crim.App. 1978).

Defense counsel's failure to make the required offer of

proof severely prejudiced Petitioner’s rights on appeal.

Petitioner was further denied his Sixth and Four-

teenth Amendment rights to effective assistance of coun-

sel by reason of his trial attorney’s failure to request a

directed verdict at the conclusion of the State’s case and

prior to submission of the case to the jury. (R. 47, 108).

Even where defendant would not have been entitled to a

ruling in his favor on a motion for directed verdict such

motions should, as a matter of practice, be made. Bonner

v. State, 389 So.2d 174 (Ala.Crim.App. 1980). While this

failure may not have had a substantial impact on the

outcome of these proceedings, it is imperative that this

omission be considered in relation to the totality of the

circumstances.

Lastly, Petitioner contends that the initial brief filed

on his behalf in connection with this appeal clearly estab-

lishes ineffective assistance of counsel. The appellate

brief is recognized as an element essential to effective

representation. Crawford v. State, 479 So.2d 1349

(Ala.Crim.App. 1985). The initial brief filed on behalf of

appellant addresses three issues which are argued in less

than one and one half pages. There are only two cites to

legal authority both of which were drawn from a treatise

ee RN, ee Eee pt RET eth OP a senha A tite) a A a

|

i

13

entitled McElroy’s Evidence, 3rd Edition. Such a brief

would well fit into the parameters set forth in High v.

Rhay, 519 F.2d 109 (9th Cir. 1975), which held that peti-

tioner was denied effective assistance of counsel on

appeal from a State court conviction where counsel filed

a four page brief which was characterized by the court as

worthless. Therefore, the inadequacy of the brief need not

be further addressed as it is per se violative of the Sixth

and Fourteenth Amendment guarantee of effective assis-

tance of counsel as well as due process.

The second showing required under Strickland, supra,

466 U.S. 668, 687, is that the petitioner must show “that

counsel’s errors were so serious as to deprive the defen-

dant of a fair trial, a trial whose result is reliable”. Fur-

ther, the court held that the determination of whether

counsel was ineffective must be based on the totality of

the circumstances and the entire record. Petitioner con-

tends that the foregoing outline of acts and omissions of

trial counsel created cumulative prejudice to the extent

that Petitioner’s trial was reduced to a farce, sham and

mockery. The State of Alabama, by and through the

Attorney General’s Office, has pointed out in previous

briefs that “[a]ssuming arguendo, that counsel was actu-

ally ineffective, the defendant has failed to show that

“but for” the alleged errors there is even a reasonable

probability that the outcome would have been different”.

Taking that argument one step further, the Petitioner

submits that “but for” the alleged errors committed at

trial, which may have resulted in the Petitioner’s waiver

of same, the jury would have deliberated in excess of

twenty eight minutes and he would currently be in a

more optimistic posture concerning the success of his

14

post-trial remedies. In summary, the Petitioner submits

that the foregoing errors, separately and severally, were

so prejudicial as to require this Court to grant his Petition

for Writ of Certiorari to the Alabama Supreme Court, and

reverse said decision with instructions that this cause be

remanded for a new trial.

+

CONCLUSION

Because the Alabama Supreme Court has failed to

recognize the deprivation of Petitioner’s constitutional

rights as guaranteed under the Sixth and Fourteenth

Amendments to the United States Constitution, this

Court should grant Petitioner’s Petition for Writ of Cer-

tiorari in this cause, reverse the decision of the Alabama —

Supreme Court and instruct that this matter is to be

remanded for a new trial consistent with Petitioner’s

constitutional guarantees.

Respectfully submitted,

Lynn E. QuINLey

Attorney For Petitioner

Post Office Box 967

Daphne, Alabama 36526

(205) 626-3120

a

No.

In The

Supreme Court of the United States

October Term, 1988

>

. OSCAR SIMS,

Petitioner,

vs.

STATE OF ALABAMA,

Respondent.

>

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

TO THE ALABAMA SUPREME COURT

-.

—

TABLE OF CONTENTS

Page

Appendix Description

A Certificate of Judgment of the Supreme

Court of Alabama denying Petitioner’s

Petition for Writ of Certiorari............ la

B Order of the Alabama Court of Criminal

Appeals overruling Petitioner’s Applica-

tion for Rehearing and the Request for

Finding of Additional Facts............... 3a

C Order of the Alabama Court of Criminal

Appeals affirming Petitioner’s conviction

without an opinion............... cece 7a

Petitioner’s Notice of Appeal. ............ lla

Petitioner’s Judgment of Sentence......... 14a

eg Be |. 17a

la

APPENDIX A

IN THE SUPREME COURT OF ALABAMA

>

87-1001

e

OSCAR SIMS,

Petitioner-Appellant

vs.

STATE OF ALABAMA,

Respondent-Appellee

-

CERTIFICATE OF JUDGMENT

OF THE

SUPREME COURT OF ALABAMA

DENYING PETITIONER’S

PETITION FOR WRIT OF CERTIORARI

a

(July 15, 1988)

2a

THE STATE OF ALABAMA - JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

July 15, 1988

87-1001

EX PARTE: OSCAR SIMS

PETITION FOR WRIT OF CERTIORARI

(Re: Oscar Sims v. State)

CCA 4/910

CERTIFICATE OF JUDGMENT

WRIT DENIED

The above cause having been duly submitted, IT IS

CONSIDERED AND ORDERED that the petition for writ

of certiorari be denied.

HOUSTON, J. - TORBERT, C.J., MADDOX,

ALMON & BEATTY, JJ., CONCUR.

RECEIVED JUL 18, 1988

I, Robert G. Esdale, as Clerk of the Supreme Court of

Alabama, do hereby certify that the foregoing is a full,

true and correct copy of the instrument(s) herewith set

out as same appeal(s) of record in said Court.

Witness my hand this 15 day of July 1988.

/s/ (illegible)

Clerk, Supreme Court of Alabama

3a

APPENDIX B

STATE OF ALABAMA

COURT OF CRIMINAL APPEALS

4th Div.910

OSCAR SIMS,

Appellant,

vs.

STATE OF ALABAMA,

Appellee.

Order of the

Alabama Court of Criminal Appeals

overruling

Appellant’s Application for Rehearing

(May 10, 1988)

4a

COURT OF CRIMINAL APPEALS

STATE OF ALABAMA

P.O. BOX 351

MONTGOMERY 36101

WILLIAM M. BOWEN, JR. MOLLIE JORDAN

Presiding Judge Clerk

JOHN C. TYSON, III Ph. 261-4590

SAM TAYLOR

JOHN PATTERSON

H. WARD McMILLAN

Judges

4th Div. 910 COVINGTON Circuit Court

CC 87-50

OSCAR SIMS vs. State of Alabama

Appellant Appellee

Dear Sir:

You are hereby notified that on May 10, 1988 the

following indicated action was taken in the above-styled

cause by the Court of Criminal Appeals of Alabama:

Notice of Appeal filed. Future correspondence

should refer to the above number.

Record on Appeal filed. Date of Certificate of Com-

pletion of Record on Appeal:

As to briefs, see Rules 28, 31 and 32, A.R.A.P.

On motion, record on appeal accepted and consid-

ered as timely filed in this Court.

Appellant granted seven (7) additional days to file

brief. Brief due on

Appellee granted seven (7) additional days to file

brief. Brief due on

XXX

5a

Appellant granted seven (7) additional days to file

reply brief. Brief due on

Brief of Appellant filed. ___Oral argument

requested by

appellant.

Reply brief filed.

Oral argument request disalllowed; appeal submit-

ted on briefs.

Appeal submitted to the Court for Decision in the

following manner:

Affirmed on appeal. No opinion. Judgment not

final, see Rules 40 and 41, A.R.A.P.

Appeal dismissed. No Opinion.

Application for rehearing and Rule 39(k), A.R.A-P.,

motion filed.

Application for rehearing filed.

Application for rehearing overruled. No opinion.

Judgment not final, see Rules 39 and 41, A.R.A.P.

Application for rehearing overruled. Rule 39(k),

A.R.A.P., motion denied. No opinion. Judgment not

final, see Rules 39 and 41, A.R.A.P.

Application for rehearing returned for non-compli-

ance with Rule 40, A.R.A.P.

6a

Appeal placed on rehearing ex mero motu.

Certificate of final judgment issued to circuit clerk.

/s/ Mollie Jordan

CLERK

COURT OF CRIMINAL

APPEALS

OF ALABAMA

le a ee tial at

7a

APPENDIX C

STATE OF ALABAMA

COURT OF CRIMINAL APPEALS

4th Div. 910

OSCAR SIMS,

Appellant,

vs.

STATE OF ALABAMA,

Appellee.

Order

of the

Alabama Court of Criminal Appeals

affirming

Petitioner’s conviction

without an opinion

(April 12, 1988)

8a

COURT OF CRIMINAL APPEALS

STATE OF ALABAMA

P.O. BOX 351

MONTGOMERY 36101

WILLIAM M. BOWEN, JR. MOLLIE JORDAN

Presiding Judge Clerk

JOHN C. TYSON, III Ph. 261-4590

SAM TAYLOR

JOHN PATTERSON

H. WARD McMILLAN

Judges

RECEIVED APR 15, 1988

4th Div. 910 COVINGTON Circuit Court

CC 87-50

OSCAR SIMS vs. State of Alabama

Appellant Appellee

Dear Sir:

You are hereby notified that on April 12, 1988 the

following indicated action was taken in the above-styled

cause by the Court of Criminal Appeals of Alabama:

___ Notice of Appeal filed. Future correspondence should

refer to the above number.

___ Record on Appeal filed. Date of Certificate of Com-

pletion of Record on Appeal:

As to briefs, see Rules 28, 31 and 32, A.R.A.P.

___ On motion, record on appeal accepted and considered

as timely filed in this Court.

__._ Appellant granted seven (7) additional days to file

brief. Brief due on

___ Appellee granted seven (7) additional days to file

brief. Brief due on

ie a a alin

9a

__ Appellant granted seven (7) additional days to file

reply brief. Brief due on

____ Brief of Appellant filed. __. Oral argument

requested by

appellant.

__ Reply brief filed.

___ Oral argument request disallowed; appeal submitted

on briefs.

__. Appeal submitted to the Court for decision in the

following manner:

xxx Affirmed on appeal. No opinion. Judgment not final,

see Rules 40 and 41, A.R.A.P.

___ Appeal dismissed. No Opinion.

__ Application for rehearing and Rule 39(k), A.R.A.P.,

motion filed.

___ Application for rehearing filed.

__. Application for rehearing overruled. No opinion.

Judgment not final, see Rules 39 and 41, A.R.A.P.

___ Application for rehearing overruled. Rule 39(k),

A.R.A.P., motion denied. No opinion. Judgment not

final, see Rules 39 and 41, A.R.A.P.

___ Application for rehearing returned for non-compli-

ance with Rule 40, A.R.A.P.

10a

__. Appeal placed on rehearing ex mero motu.

___ Certificate of final judgment issued to circuit clerk.

/s/ Mollie Jordan

CLERK

COURT OF CRIMINAL

APPEALS OF ALABAMA

lla

APPENDIX D

ALABAMA COURT OF CRIMINAL APPEALS

Circuit Court of Covington County, Alabama

Case No. CC-87-50

OSCAR SIMS,

Appellant,

vs.

STATE OF ALABAMA,

Appellee.

APPEAL

(June 8, 1987)

12a

AP 12-3 Letter of transmittal of Notice of Appeal to the

Court of Criminal Appeals by Trial Clerk Printed and for

Sale by Robert & Son, Birmingham

LETTER OF TRANSMITTAL OF NOTICE

OF APPEAL TO THE COURT OF CRIMINAL APPEALS

BY TRIAL CLERK

Oscar Sims Offense Rape II

Appellant Sentence Ten (10) Years

v. Notice of Appeal June 8, 1987

STATE OF ALABAMA Date Filed

Appellee Judgment Entry June 8, 1987

Date Entered

[XX] Oral notice of appeal has been given prior to or on

the date of entry of the judgment of conviction in

this cause,

{ ] Written notice of appeal has been filed on the date

indicated hereon (within 42 days from the entry of

judgment or the order overruling a post conviction

motion).

A certified copy of the entry of record of the oral

notice of appeal or the written notice of appeal is for-

warded herewith for filing with the Court of Criminal

Appeals.

I certify that I have served a copy of this letter of

transmittal along with a copy of the notice of appeal on

each of the following:

1. Court Reporter (Name and address) Ron Embry,

Covington County Courthouse, Andalusia, AL 36420

2. Defendant

13a

3. Defendant’s appellate counsel. (Name and

address) Larry R. Grissett, P.O. Box 423, Opp, AL

36467

4. District Attorney

5. Attorney General

DATED this 8th day of June, 1987.

/s/ Ray Bozeman

Circuit Clerk

l4a

APPENDIX E

IN THE CIRCUIT COURT OF COVINGTON

COUNTY, ALABAMA

Case No. CC-87-50

STATE OF ALABAMA,

Plaintiff,

VS.

OSCAR SIMS,

Defendant.

Petitioner’s Judgment of Sentence

(June 8, 1987)

15a

IN THE CIRCUIT COURT OF COVINGTON COUNTY,

ALABAMA

STATE OF ALABAMA, :

PLAINTFF, °

VS. CASE NO. CC-87-50

OSCAR SIMS, 3

DEFENDANT. -

This being the day regularly set for the sentencing of

Defendant, the Defendant having been tried by a jury,

found guilty, and duly adjudged guilty on the 29th day of

April, 1987 of Rape in the Second Degree; and the Defen-

dant being personally present and represented by his

attorney and the State being represented by the District

Attorney, and the report of the pre-sentence investigation

ordered by the Court having been presented to the Court

and the Defendant, the Court proceeds with the sentence

hearing.

Neither party desiring to offer evidence in addition

to the report of the pre-sentence investigation, the Court

asks the defendant if he had anything to say as to why

the judgment of the Court and the sentence of law should

not be imposed upon him and the Defendant said noth-

ing; and the Court having duly considered the report of

the pre-sentence investigation is of the opinion that the

Defendant should be imprisoned for a period of ten (10)

years in the Penitentiary of the State of Alabama.

It is therefore ORDERED, ADJUDGED and

DECREED by the Court that the said Defendant, Oscar

Sims, be imprisoned in the Penitentiary of the State of

Alabama for a period of ten (10) years and the Defendant

was duly sentenced to said period by the Court. The

Defendant is ORDERED to pay all Court costs, including

l6a

$25.00 to the Victim’s Compensation Fund. Defendant is

to receive credit for any time incarcerated on this charge.

The Court further advised the Defendant of his rights

of appeal and the Defendant gave notice of appeal and

asked for suspension of sentence. Sentence is hereby

suspended and appeal bond is set at the sum of

$10,000.00.

The Court determined the Defendant to be an indi-

gent, the Honorable Larry Grissett is hereby appointed to

represent him on appeal and a free transcript is hereby

ORDERED to be prepared for the Defendant under the

appropriate provisions of law.

Done in Office this the 8th day of June, 1987.

/s/ W. H. Baldwin

CIRCUIT JUDGE

17a

APPENDIX F

IN THE CIRCUIT COURT OF COVINGTON

COUNTY, ALABAMA

Case No. CC-87-50

STATE OF ALABAMA,

Plaintiff,

vs.

OSCAR SIMS,

Defendant.

Petitioner’s Conviction

(April 29, 1987)

18a

IN THE CIRCUIT COURT OF COVINGTON COUNTY,

ALABAMA

STATE OF ALABAMA, .

PLAINTFF, “

VS. CASE NO. CC-87-50

OSCAR SIMS, .

DEFENDANT. :

(Filed April 29, 1987)

This cause coming on for trial on this the 29th day of

April, 1987 and comes the State of Alabama by and

through its District Attorney of the 22nd Judicial Circuit,

Honorable Eugenia Loggins, and comes the Defendant in

his own proper person accompanied by his attorney of

record, Honorable Larry Grissett, and came a jury of

good and lawful people, to-wit: John R. Cook and eleven

others and said cause proceeded to trial.

After hearing the evidence the jury returned the fol-

lowing verdict: “We, the Jury, find the Defendant guilty

as charged. John R. Cook, Foreman.”

Thereafter the Court asked the Defendant if he had

anything to say as to why the judgment of the Court

should not be imposed upon him and following the

Defendant making a statement, the Court pronounced the

Defendant, Oscar Sims, guilty of Rape in the Second

Degree. The Defendant moved for a sentence hearing and

the Court continued said cause to the 9th day of June,

1987 for sentence hearing. The Defendant is continued on

his present bond until the holding of said sentence

hearing.

It is further ORDERED and ADJUDGED by the Court

that a pre-sentence investigation be made and the results

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be available to the Court, the State and the Defendant at

said sentence hearing.

It is further ORDERED by the Court that the State

furnish to the Defendant and his cousel not later than

June 4, 1987 written notice of any prior felonies which the

State expects to offer under the Habitual Offender Act.

Done in Office this the 29th day of April, 1987.

/s/ W. H. Baldwin

CIRCUIT JUDGE