Petition — CADE v. ALABAMA (No. 79-5525)

Supreme Court brief1979

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Text

RECEIVED

UCT 19 1979

OFFICE OF THE CLERK

SUPREME COURT, U.S.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

~_ 99-5529

CLYDE CADE, Petitioner

vs.

STATE OF ALABAMA, Respondent

PETITION FOR A WRIT OF CERTIORARL TO THE

SUPREME COURT OF ALABAMA

CG, STEPHEN WIGGINS

2625 = Bth Street

P.O. Box 1939

Tuscaloosa, AL 35403

Attorney for Petitioner

INDEX

Gene DREN 6-6 ae Ck bee ee eo ack ee oo ee

Jurisdiction ,

Questions presented

Constitutional and other relevant statutory provisions .

Statement of the case ....2-s.

How the federal constitutional questions were raised

and decided below ,

Reasons for granting the writ (summary of argument)

Argument

I. Alabama's Unique Statutory Prohibition,

which Precludes Juries in Capital Cases

from Considering Factually Established

Lesser Included Offenses, Deprives all

Persons Accused of Capital Crimes of

The Due Process and Equal Protection

Rights Guaranteed them by the Fourteenth

Amendment and Violates the Cruel and Un-

usual Prohibition of the Eighth Amendment .

II, The Statutory Provision which Requires

the Jury to Impose a Death Sentence upon

every Capital Murder Conviction Contra-

venes the Eighth and Fourteenth Amend-

ments ot the United States Constitution,

by Encouraging Arbitrary and Wanton Jury

DaserTetion « + 6 60 6 8 8 ee °°

IIL, The Failure of Alabama's Capital

Sentencing Scheme to Require the

State to Prove the Existence of

Aggravating Circumstances beyond

a Reasonable Doubt Renders it

Violative of The Due Process Clause .

IV. The Statutory Procedure which Defers

Consideration of Aggravating and Miti-

gating Circumstances Until after a Jury

has Imposed a Sentence of Death Violates

the Eighth and Fourteenth Amendments, by

Placing the Trial Judge in a Position of

Having to Reduce a Jury-Fixed Death Sen-

tence if He Deems the Death Penalty In-

QPPTOPUERNG 2 66 te ete Oe te eh

V. The Statutory Provisions which Limit

Circumstances of Mitigation Violate

the Eighth and Fourteenth Amendments

by Preventing the Sentencer from Giving

Independent Mitigating Weight to Aspects

of the Defendant's Character and Record

and to Circumstances of the Offense Prof-

fered as a Basis for a Seutence Less than

Death . . . . ,. . . . . . . . . . . . . .

Paye:

Vi. ‘The Patlure of the Alabama Death Penalty

Seheme to Provide a System of Comparative

Revlew of Sentences and to Empower the

appellate Courts to Vacate Death Sentences

in Appropriate Cases makes that Scheme Vio-

lative of the Eighth Amendment's Proscription

Against Cruel and Unusual Punishment . .

VIL. The Alabama Death-Penalty Statutes, as

Applied, Constitute a Mandatory Death-

Sentencing Scheme which violates the

Eighth Amendment's Prohibition of Cruel

and Unusual Punishment .......-..

VIII. The Trial Judge's Consideration of the

Jury's Death Sentence as one of the

Aggravating Circumstances Weighed in

his Fixing the Punishment at Death Vio-

lated the Eighth and Fourteenth Amend-

Ee oe ee ee ee ee ee

COAG oa Sse bs cae es ek ee Oo ee es

ee a er er ee ee ee

DOGREEOOe hs We 6 8) ic ee er ee be 8 eee

Appendix A (Opinion of the Alabama Court of

Crimieal Bepesis)... i -. «3 6 3

Appendix B (Opinion of the Alabama Supreme Court).

Appendix C (List of Alabama Court of Criminal

Appeals Capital Opinions). ...

Appendix D (List of Alabama Court of Criminal

Appeals Life-Without-Parole Opinions).

Appendix E (Alabama Supreme Court Capital Opinions). .

TABLE OF AUTHORITIES

Cases

Addington v. Texas, 25 Crim. L. Rptr.

3039 (May 2, 1979) . i one.

Allee v. Medrano, 416 U.S. 802 (1974) .

Beck v. State, 7 Div. 560 (Ala. Cr. App., April 4, 1978).

Boykin v. Alabama, 395 U.S. 238 (1969).

Bracewell v. State, 4 Div. 646 shai Cr. ae ‘

Jan. 30, 1979) . P ° ‘ ‘ P

Brown v. State, 288 Ala. 680, 264 So.2d 549 (1971).

Bruton v. United States, 391 U.S. 123 (1968).

Case v. State, 4 Div. 640 (Ala. Cr. App., Nov. 21, 1978).

Coker v. Georgia, 433 U.S. 584 (1977)

Connally v. Georgia, 429 U.S. 245 (1977).

Davis v. State, 245 Ala. 589 (1944)

Dennis v. United States, 341 U.S. 494 (1951).

Easley v. State, 246 Ala. 359 (1944). .....s-+.s-s

Ex parte Recardo Cook (Re: Recardo Cook v.

State of Alabama) SC 77-320 — ~e- ct.,

SO0C; 205, 2970s 6.6%. we: ‘ oats

Fulghum v. State, 291i Ala. 7, 277 So.2d 886 (1973).

Furman v. Georgia, 408 U.S. 238 (1972).

Gardner v. Florida, 430 U.S. 349 (1977)... 2. &@ we wee

Gregg v. Georgia, 428 U.S. 153 (1976) ..... 8 3 ‘

In re Winship, 397 U.S. 358 (1970). . 2. . «es s2ee-eee-e

Jackson v. Denno, 378 U.S. 368 (1964) ..... +e

Jackson v. State, 337 So.2d 142 (Miss. 1976). ....

Jacobs v. State, 361 So.2d 607 (Ala. Cr. App. 1977)...

Jacobs v. State, 361 So.2d 640 (Ala. 1978) ..

Joe v. United States, 510 F.2d 1038 (10th Cir. 1975)...

Johnson v. Mississippi, 403 U.S. 212 (1971) .... 2...

iii

PAGES

13,

24,

10, 12, 1

» 52

14, 24

25, 26,

19, 21,

335 37s

;

}

Cases

Jurek v. “exa., 428 U.S. 262 (1976)

Keeble v. United States, 412 U.S. 205 (1973)

Liddell v. State, 287 Ala. 299, 251 So.2d. 601 (1971) .

Lockett v. Ohio, U.

Ss. » 57 L.Ed. 2d 973 (1978) ..

Neal v. State, 6 Div. 894 (Ala. Cr. App., May l, 1979). .

Presnell v. Georgia,

U.S.

Proffitt v. Florida, 428 U.S. 242 (1976). ...

San Antonio School District v.

411 U.S. 1 (1973).

Rodriguez,

Shapiro v. Thompson, 399 U.S. 618 (1969). .....

Shuttlesworth v. Birmingham, 394 U.S.

Slater v. State, 316 So.2d 539 (Fla.

147 (1969).

1975). .

» 58 L.Ed. 2d 207 (1978) .

Stanislaus Roberts v. Louisiana, 428 U.S. 325 (1976).

State v. Nolen, Circuit Court No. 7702059 (Feb. 17, 1978) .

State v. Simants, 250 N.W. 2d 881 (Neb.

Thomas v. State, 2 Div.

Tumey v. Ohio, 273 U.S.

United States v. Comer,

United States v. Tsanas, 572 F.2d 340 (2d Cir.

Gane. denied 98 §.Ce. 1647 CIS7B). sc ss

RGGI) wks

238 (Ala. Cr. App., March 27, 1979) .

SO 1927)...

421 F.2d 1149 (D.C. Cir.

United States ex rel. Matthews v. Johnson, 503

F.2d 339 (3d Cir. 1974). .

United States ex rel. Powell v. Pennsylvania,

294 F.Supp. 849 (E.D. Pa. 1968). ......4.

Ward v. City of Monroeville, 409 U.S. 57 (1972) .

Wardius v. Oregon, 412 U.S. 470 (1973). .....

1978),

1970).

Wilson v. State, 77-433 (Ala. S. Ct., April 20, 1979)

Witherspoon v. Illinois, 391 U.S. 510 (1968)...

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

Wright v. Georgia, 373 U.S. 284 (1963). ....

Yick Wo v. Hopkina, 1160.8. 356 (1686) . ... .« « «2 8

27, 31

14,

12,

26,

31,

35,

21, 23

Law Review Articles

Comment, Jury Instructions on Lesser Included Offenses.

S.8. L. Baws GR Cia sa kes Bae ew ee eS

Comment, The Lesser Included Offense Doctrine in Lowa;

The Gordian Knot Untied, 59 Iowa L. Rev. 684 (1974).

Comment, The Lesser Included Offense Instruction -~

Problems With Its Use, 3 Land and Water L. Rev.

Sa? (ISG) 26s ew ee ee ee ee Oe

Koenig, The Many-Headed Hydra of Lesser Included

Offenses: A Herculean Task for Michigan Courts,

Vol. 1975 Detroit Coll. L. Rev. 41 (Issue 1)... .

PAGES

RULES, STATUTES AND CONSTITUTIONAL PROVISIONS

Ala. R. App. Pro., Rule

Ala.

App. Pro., Rule

Ala. R. App. Pro., Rule

Code

Ohio

Rev. Code Ann., § 2929.04(B) (1975

Alabama (1975),

U. S. Const., Am. VIII

U. S. Const., Am. XIV.

13-1-90 . .

13-11-2(a)

W3-11-3 . . .

13-11-3(a)

13-11-46 . 2. 2 we

13-11-4(1)

13-11-4(2)

13-11-5 ..

13-11-6. .

13-11-7 . .

13-11-7(1)

13-11-7(2)

13-11-7(3)

13-11-7(4)

13-11-7(5)

13-11-7(6)

13-11-7(7)

12-22-150 ...

12-22-241 ... .

Repl. Vol.) ..

. 2+ 2°38

PAGES

33, 35

21, 36

29, 30

9, 33, 34

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

w__€9°5525

CLYDE CADE, uuT 19

PETITIONER, OFFICE OF THE CLERK

SUPREME COURT, U.S.

vs.

RECEIVED

1979

STATE OF ALABAMA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

The Petitioner, Clyde Cade, respectfully prays that a Writ of

Certiorari issue to review the judgment and opinion of the Alabama Supreme

Court entered in this proceeding on M.y 25, 1979.

OPINIONS BELOW

The opinion of the Alabama Supreme Court appears attached hereto as

Appendix A, which also contains the dissenting opinion of Justice

opinion of the Alabama Court of Criminal Appeals appears attached

Appendix B. Neither opinion has appeared in published form as of

this petition.

JURISDICTION

The judgment of the Supreme Court of Alabama was entered

1979. No petition for rehearing was filed. A timely application

sion of time in which to file Petition for Writ of Certiorari was

granted by Mr. Justice Powell, extending the time for filing this

Jones. The

hereto as

the date of

on May 25,

for exten-

filed and

Petition to

October 22, 1979. This Petition was timely filed, and the Court's jurisdic-

tion is invoked under 28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

I. Whether the state's unique statutory prohibition, which precludes

juries in capital cases from considering factually established lesser included

wiles

offenses, deprives all persons accused of capital crimes of due process and

equal prof-cci.1 rights guaranteed them by the Fourteenth Amendment, and

whether said prohibition violates the cruel and vrusual prohibition of the

Eighth Amendment.

Il. Whether the state's statutory provision which requires the jury

to impose a death sentence upon every capital murder conviction contravenes

the Eighth and Fourteenth Amendments of the United States Constitution, by

encouraging arbitrary and wanton jury discretion.

III. Whether the failure of Alabama's capital sentencing scheme to

require the State to prove the existence of aggravating circumstances beyond

a reasonable doubt renders it violative of the due process clause.

IV. Whether the state statutory procedure which defers consideration

of aggravating and mitigating circumstances until after a jury has imposed a

sentenceof death violates the Eighth and Fourteenth Amendments by placing the

trial judge in a position of having to reduce a jury fixed death sentence if

he deems the death penalty inappropriate.

V. Whether the statutory provisions which limit circumstances of

mitigation violate the Eighth and Fourteenth Amendments by preventing the

sentencer from giving independant mitigating weight to the offender's charac-

ter and record and to circumstances of the offense proffered as a basis for a

sentence less than death.

VI. Whether the failure of the state's death penalty scheme to

provide a system of comparative review of sentences and to empower the appel-

late courts to vacate death sentences in appropriate cases makes that scheme

violative cf the Eighth Amendment's proscription against cruel and unusual

punishment.

VII. Whether the Alabama death penalty statutes, as applied, con-

stitute a mandatory death-sentencing scheme which violate the Eighth Amend-

ment's prohibition of cruel and unusual punishment.

VIII. Whether the trial judge's consideration of the jury's death

sentence as one of the aggravating circumstances weighed in his fixing the

punishment at death violated the Eighth und Fourteenth Amendments.

CONSTITUTIONAL AND OTHER RELEVANT STATUTORY PROVISIONS

1. This case involves the Eighth and Fourteenth Amendments to the

Constitution of the United States.

ate

2. This case also involves the following provisions of Alabama law.

TITLE 13, CODE OF ALABAMA (1975)

CHAPTER II

Death Penalty and Life Imprisonment

Without Parole.

§ 13-1ll-1. LIMITATION ON IMPOSITION OF DEATH |

PENALTY OR LIFE SENTENCE WITHOUT

PAROLE. '

Except in cases enumerated and described in section 13-11-2, neither |

a court nor a jury shall fix the punishment for the commission of treason,

felony or other offenses at death, and the death penalty or a life sentence

without parole shall be fixed as punishment only in cases and in the manner

herein enumerated and described in 13-11-2. In all cases where no aggravated |

circumstances enumerated in section 13-11-2 are expressly averred in the

indictment, the trial shall proceed as now provided by law, except that the

death penalty or life imprisonment without parole shall not be given, and

the indictment shall include all lesser offenses. (Acts 1975, No. 213, §1).

§ 13-11-2, AGGRAVATED OFFENSES FOR WHICH DEATH

PENALTY TO BE IMPOSED; FELONY-MURDER j

DOCTRINE NOT TO BE USED TO SUPPLY

INTENT; DISCHARGE OF DEFENDANT UPON i

FINDING OF NOT GUILTY; MISTRIALS;

REINDICTMENT AFTER MISTRIAL.

(a) If the jury finds the defendant guilty, it shall fix the j

punishment at death when the defendant is charged by indictment with any of

the following offenses and with aggravation, which must also be averred in

the indictment, and which offenses so charged with said aggravation shall not |

include any lesser offenses:

(1) Kidnapping for ransom or attempts thereof, when the

victim is intentionally killed by the defendant; i

(2) Robbery or attempts thereof when the victim is in-

tentionally killed by the defendant;

(3) Rape when the victim is intentionally killed by the }

defendant; carnal knowledge of a girl under 12 years of age,

or abuse of such girl in an attempt to have carnal knowledge,

when the victim is intentionally killed by the defendant;

(4) Nighttiae burglary of an occupied dwelling when any

of the occupants is intentionally killed by the defendant;

ee ~ ee es oe

(5) The murder of any poiice officer, sheriff, deputy,

state trooper or peace officer of any kind, or prison or

jail guard while such prison or jail guard is on duty or be-

cause of some official or job-related act or performance of

such officer or guard;

-3-

(6) Any murder committed while the defendant is

under sentence of life imprisonment;

(7?) Murder in the first degree when the killing was

done for a pecuniary or other valuable consideration or

pursuant to a contract or for hire;

(8) Indecent molestation of, or an attempt to in-

decently molest, a child under the age of 16 years, when

the child victim is intentionally killed by the defendant;

(9) Wilful setting off or exploding dynamite or other

explosive under circumstances now punishable by section

13-2-60 or 13-2-61, when a person is intentionally killed

by the defendant because of said explosion;

(10) Murder in the first degree wherein two or more

human beings are intentionally killed by the defendant by

one or a series of acts;

(11) Murder in the first degree where the victim is a

public official or public figure and the murder stems from

or is caused by or related to his official position, acts

or capacity;

(12) Murder in the first degree committed while the

defendant is engaged or participating in the act of un-

lawfully assuming control of any aircraft by use of threats

or force with intent to obtain any valuable consideration for

the release of said aircraft or any passenger or crewman

thereon, or to direct the route or movement of said aircraft,

or otherwise exert control over said aircraft;

(13) Any murder committed by a defendant who has been

convicted of murder in the first degree in the 20 years

preceding the crime; or

(is) Murder when perpetrated against any witness sub-

poenaed to testify at any preliminary hearing, trial or

grand jury proceeding against the defendant who kills or

procures the killing of witness, or when perpetrated

against any human being while intending to kill such witness.

(b) Evidence of intent under this section shall not be supplied by

the felony-murder doctrine.

defendant must be discharged. The court may enter a judgment of mistrial

upon failure of the jury to agree on a verdict of guilty or not guilty or on

the fixing of the penalty of death. After entry of a judgment of mistrial,

the defendant may be tried again for the aggravated offense, or he may be

reindicted for an offense wherein the indictment does not allege an aggra~

vated circumstance. If the defendant is reindicted for an offense wherein

the indictment does not allege an aggravated circumstance, the punishment

upon conviction shall be as heretofore or hereafter provided by law; however,

the punishment shall not be death or life imprisbnment without parole.

(Acts 1975, No. 213, §2).

-—

§ 13-11-3. HEARINGS AS TO IMPOSITION OF DEATH

PENALTY OR LIFE SENTENCE WITHOUT

PAROLE AFTER CONVICTION; ADMISSIBILITY

OF EVIDENCE; RIGHT OF STATE AND DEFEN-

DANTS TO PRESENT ARGUMENTS.

If the jury finds the defendant guilty of one of the aggravated

offenses listed in section 13-11-2 and fixes the punishment at death, the

court shall thereupon hold a hearing to aid the court to determine whether or

not the court will sentence the defendant to death or to life imprisonment

without parole. In the hearing, evidence may be presented as to any matter

that the court deems relevant to sentence and shall include any matters re-

lating to any of the aggravating or mitigating «'>cumstances enumerated in

sections 13-11-6 and 13-l1-?. Any such evidence which the court deems to

have probative value may be received, regardless of its admissibility under

the exclusionary rules of evidence, provided that the defendant is accorded

a fair opportunity to rebut any hearsay statements; provided further, that

this section shall not be construed to authorize the introduction of any

evidence secured in violation of the Constitution of the United States or of

the State of Alabama. The state and the defendant, or his counsel, shall be

permitted to present argument for or against the senterceof death. (Acts

1975, No. 213, $3).

§ 13-11-4. DETERMINATION OF SENTENCE BY COURT;

COURT NOT BOUND BY PUNISHMENT FIXED

BY JURY.

Notwithstanding the fixing of the punishment at death by the jury,

the court, after weighing the aggravating and mitigating circumstances, may

refuse to accept the death penalty as fixed by the jury and sentence the

defendant to life imprisonment without parole, which shall be served without

parole; or the court, after weighing the aggravating and mitigating circum-

stances, and the fixing of the punishment at death by the jury, may accord-

ingly sentence the defendant to death. If the court imposes a sentence of

death, it shall set forth in writing, as the basis for the sentence of death,

findings of fact from the trial and the sentence hearing, which shall at

least include the following:

(1) Ope ov more of the aggravating circumstances enumerated

in section 13-11-6, which it finds exists in the case and which if finds

sufficient to support the sentence of death; and

(2) Any of the mitigating circumstances enumerated in section

13-11-7 which it finds insufficient to outweigh the aggravating circumstances.

(Acts 1975, No. 213, $4).

§ 13-11-5. CONVICTION AND SENTENCE OF DEATH

SUBJECT TO AUTOMATIC REVIEW.

The judgment of conviction and sentence of death shall be subject to

automatic review as now required by law. (Acts 1975, No. 213, §5).

§ 13-11-6. AGGRAVATING CIRCUMSTANCES.

Aggravating circumstances shall be the following:

(1) The capital felony was committed by a person

under sentence of imprisonment;

(2) The defendant was previously convicted of another

capital felony or a felony involving the use or threat of

violence to the person;

(3) The defendant knowingly created a great risk of

death to may persons;

(4) The capital felony was committed while the defen-

dant was engaged or was an accomplice in the commission of,

or am attempt to commit, or flight after committing, or

attempting to commit, rape, robbery, burglary or kidnapping

for ransom;

(S) The capital felony was committed for the purpose

of avoiding or preventing a lawful arrest or effecting an

escape from custody;

(6) The capital felony was committed for pecuniary gain;

(7) The capital felony was committed to disrupt or

hinder the lawful exercise of any governmental function or

the enforcement of laws; or

(8) The capital felony was especially heinous, atrocious

or cruel. (Acts 1975, No. 213, §6).

§ 13-11-?. MITIGATING CIRCUMSTANCES.

Mitigating circumstances shall be the following:

(1) The defendant has no significant history of prior

criminal activity; e

(2) The capital felony was committed while the defen-

dant was under the influence of extreme mental or emotional

disturbance;

(3) The victim was a participant in the defendant's

conduct or consented to the act;

(4) The defendant was an accomplice in the capital felony

committed by another person and his participation was relatively

minor;

(S) The defendant acted under extreme duress or under

the substantial domination of another person;

(6) The capacity of the defendant to appreciate the

criminality of his conduct or .o conform his conduct to the

requirements of law was substantially impaired; and

(7) The age of the defendant at the time of the crime.

(Acts 1975, No. 213, §7).

eee ee eee

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§ 13-11-8. APPOINTMENT OF EXPERIENCED COUNSEL

FOR INDIGENT DEFENDANTS.

Each person indicted for an offense punishable under the provision

of this chapter who is not able to afford legal counsel must be provided with

court appointed counsel having no less than five years prior experience in

the active practice of criminal law. (Acts 1975, No. 213, $8).

§ 13-11-9. EFFECTIVE DATE.

This chapter shall become effective on March 7, 1976. (Acts 1975,

No. 213, §10).

ate

oo re ee ee eee + ee

STATEMENT OF THE CASE

Pec.c’oner was tried and convicted on March 15, 1978, for the murder

of L. D. Sizemore, Sheriff of Geneva County, Alabama. The trial was con-

ducted pursuant to Alabama's LT pee-tasal sie penalty statute,

§§ 13-1 to 9, Code of Alabama (1975). At the end of a three-day trial, the

jury found petitioner guilty and fixed the punishment at death.

Twelve days following the conclusion of the trial, the trial judge

held a post-verdict sentencing hearing to determine whether or not the jury-

fixed sentence of death should be reduced to life imprisonment without parole.

At the sentencing hearing the state offered evidence of petitioner's prior

convictions through pre-sentence reports and reports prepared by the state

Board of Pardons and Paroles, and a statement taken by a state investigator.

(R. 523-530) Although the petitioner presented no evidence, he argued that

his severe emotional and personality problems should mitigate the imposition

of the death penalty. Additionally, petitioner noted that the state present-

ed no evidence of a lawful arrest of petitioner by Sheriff Sizemore. (R. 530-

531)

Upon completion of the hearing, the trial court made certain written

findings, among them being: (1) “that this Capital felony of first degree

murder was committed for the purpose of avoiding or preventing a lawful

arrest," (2) “that this Capital felony was committed to disrupt or hinder

the lawful exercise of a government function or the enforcement of the Law."

(R. 76-77) The Court further noted that it had considered the testimony con-

cerning the diminished responsibility of the defendant, his state of mind at

the time of the killing, his degree of intoxication, his mental competency,

the ciicumstances surrounding the killing and whether or not it was done in

the heat of passion. Having done so, the Court found that the defendant did

not act under extreme duress and that he had the capacity to appreciate the

criminality of his conduct, and his ability to conform his conduct to the

requirements of law was not substantially impaired. (R. 78)

1/ Furman v. Georgia, 408 U.S. 238 (1972).

2/ Gregg v. Georgia, 428 U.S. 153 (1976).

oaSe

The final written finding of the Court stated that, "the Court, after

considering 2:11 the evidence in the case and the circumstances of the offense,

together with the character and propensity of the defendant, Clyde Cade, and

after weighing the aggravating and mitigating circumstances and the punishment

of death by the jury, finds the defendant, Clyde Cade, should be sentenced to

death". (R. 78) |

Under the Alabama Automatic Appeal Statute, § 12-22-241, Code of

Alabama (1975), see Boykin v. Alabama, 395 U.S. 238, 241 (1969), petitioner

through appointed counsel attacked the constitutional validity of the Alabama

death penalty stat:te, and furthermore presented other issues for review. On |

November 21, 1978, the Court of Criminal Appeals affirmed petitioner's con-

viction and sentence of death, specifically rejecting petitioner's constitu-

tional challenge. (App. A, infra.) The Alabama Supreme Court affirmed in

turn, on May 25, 1979. (App. B, infra.) One justice dissented on the ground

that the death penalty statute was unconstitutional and also on the ground

of the aggravating circumstances considered by him in his judgment fixing the

{

that the trial judge improperly considered the jury's death sentence as one

punishment at death. (App. B, p. 2, infra.) No petition for rehearing was

| filed. }

! HOW THE FEDERAL CONSTITUTIONAL QUESTIONS

i WERE RAISED AND DECIDED BELOW

Petitioner's federal constitutional challenges to the Alabama

statutory procedures governing prosecution and sentencing in capital cases,

and to their application in his particular case, were briefed before the

Alabama Court of Criminal Appeals and before the Alabama Supreme Court, and

| were rejected on the merits by sar Courts. The majority opinion of the

Alabama Court of Criminal Appeals» is devoted to the decision of these

questions.

i} REASONS FOR GRANTING THE WRIT

Summary of Argument

I. Constitutionality of the Statute

In 1975, the Alabama Legislature, responding to its perception of

3/ The opinion of the Alabama Court of Criminal Appeals and the j

opinion of the Alabama Supreme Court are unpublished as of the date of the |

filing of this petition.

ofa

the mandate of Furman v. Georgia, 408 U.S. 238 (1972), enacted the death

| penalty statuce that is now found in Sections 13-ll-1 to 13-11-9 of the Code

of Alabama (1975). Passed as it was without the benefit of the Supreme Court's

opinions in the 1976 death penalty cases, the statute combines the worst

features of mandatory death sentencing and of inadequately channeled discre-

tionary death sentencing.

The Alabama death penalty law decrees death for certain “aggravated

offenses". At trial of the issue of guilt, the jury must either convict

the defendant of the aggravated (capital) offense or acquit him completely

because the statute provides that a capital offense “shall not include any

lesser offenses". § 13-11-2(a). If the jury finds the defendant guilty of

an aggravated offense, "it shall fix the punishment at death". Id. The

trial ivdge is then required to hold a hearing to determine whether he will

"refuse co accept the death penalty as fixed by the jury" and will instead

sentence the defendant to life imprisonment without parole. § 13-11-4.

After weighing the statutorily enumerated aggravating and mitigating circum-

AIO and “the fixing of the punishment at death by the jury", the judge

"may accordingly sentence the defendant to death", or may reduce the jury-

fixed death sentence. Id.

The Alabama statutory scheme is unique. No other American juris-

- diction forbids a jury in a capital trial to consider evidentially supported

lesser included offenses, requires the jury either to loose the defendant on

the streets or fix his sentence at death and then compels the trial judge to

"refuse to accept" the jury's mandatory death sentence if he believes that a

sentence of life imprisonment is appropriate. This extraordinary procedure

places both judges and juries in an untenable and irresponsible position and

in so doing destroys essential safeguards that are constitutionally required

in order to assure "reliability in the determination that death is the

4/ Section 13-11-2(a) enumerates the fourteen aggravating allega-

tions which trigger a capital indictment.

5/ The aggravating circumstances are found in § 13-11-6, and the

mitigating circumstances are found in § is-11-7.

alOe

appropriate punishment in a specific case", Woodson v. North Carolina, supra, |

428 U.S. et 50S (plurality opinion).

Additionally, Alabama's statutes do not require the state to prove |

the aggravating circumstances, upon which the trial judge must base a death

sentence, beyond a reasonable ae This failure flies in the face of due |

process and the requirement "for a greater degree of reliability where the

death sentence is imposed", Lockett v. Ohio, U.S. _, 57 L.Ed.2d 973, 989

(1978). |

After a defendant is convicted and sentenced to death, his convic- |

tion is automatically reviewed by the appellate courts. The appellate courts

do not conduct a comparative review nor do they possess the power to vacate

the inappropriate death sentences. Thus the Alabama death penalty scheme

lacks an important ingredient of constitutionality, proper comparative

appellate review of death sentences.

Finally, the Alabama death penalty law as applied is unconstitutional

because it is mandatory. Rather than offering a system for consideration of

the individual attributes of an offender and the circumstances of a particular

crime, Alabama offers a system with an 86% death sentence rate. No system

which permits such a mandatory imposition of capital punishment can be |

constitutional.

Il. Consideration by Trial Judge of jury's

death sentence as aggravating circumstance

in fixing punishment at death.

The trial Judge improperly considered the jury's death sentence as

an aggravating circumstance in fixing punishment at death. The trial proper

furnished the jury neither adequate data of aggravation and mitigation nor

legal guidelines for the exercise of guided discretion in sentencing. There-

fore, to allow the trial Judge to consider the jury's verdict of death as an

aggravating circumstance in arriving at his ultimate judgment of the death

penalty is to commit the same error compounded.

6/ See § 13-11-4 (1) and (2).

-ll-

ALABAMA'S UNIQUE STATUTORY PROHIBITION,

WHICH PRECLUDES JURIES IN CAPITAL CASES

FROM CONSIDERING FACTUALLY ESTABLISHED

LESSER INCLUDED OFFENSES, DEPRIVES ALL

PERSONS ACCUSED OF CAPITAL CRIMES OF

THE DUE PROCESS AND EQUAL PROTECTION

RIGHTS GUARANTEED THEM BY THE FOURTEENTH

AMENDMENT AND VIOLATES THE CRUEL AND UN-

USUAL PROHIBITION OF THE EIGHTH AMENDMENT.

A. Legislative History.

The submission to the jury of lesser included offenses which are

supported by the evidence is a commonplace of American criminal jurisprudence.

In Alabama, by statute, the court is required in every murder case to charge |

7/ |

on both first and second degree murder. It is also required to charge on

other degrees of homicide, "if there is any reasonable theory which could

support the position". Fulghum v. State, 291 Ala. 7, 277 So.2d 886 (1973).

Under the death penalty statute, however, the trial jury is pre-

cluded from considering lesser included offenses that can factually be found

in a capital case. § 13-11-3(a). If the jury believes that the defendant

has committed some degree of homicide but not capital murder, it is given the

Hobson's choice of acquitting a killer or of returning a verdict evidencing |

the finding of elements about which the jury is not satisfied beyond a |

reasonable doubt, and carrying a death sentence.

Apparently, the Alabama legislature drafted this preclusion of lesser

included offenses in 1975 because it believed Furman v. Georgia, 408 U.S. 238

(1972), required such a draconian approach. Cf. Leckett v. Ohio, _ U.S.

___,» 57 L.Ed. 2d 973, 986-7, n.7 (1978) (plurality opinion); Jackson v.

State, 337 So.2d 142 (Miss. 1976). Alabama was alone in its belief, however,

because none of the 34 other states enacting capital punishment laws after

Furman included such a provision in their statutes.

}

7/ § 13-1-73, Code of Alabama (1975). Under Alabama law first

degree murder is wilful, deliberate, malicious and premeditated killing. All

other common law murder is murder in the second degree. § 13-1-70, Code of

Alabama (1975). A person convicted of first degree murder is automatically

sentenced to life in prison while a person convicted of second degree murder

is sentenced, at the discretion of the jury, to a term of imprisonment of

not less than 10 years. § 13-1-74, Code of Alabama (1975).

8/ In Alabama, the other degrees of homicide are manslaughter in

the first degree and manslaughter in the second degree. § 13-1-90, Code of

Alabama (1975).

-1]2-

Subsequent to the enactment of the Alabama statute, the Supreme i)

handed dorm it. decision in Gregg v. Georgia, supra. Therein, the Court

withdrew the foundation for that belief, holding that blanket preclusion of

lesser included offenses would be alien to our present system of criminal

justice. Id. 428 U.S. at 199-200, n. 50 (plurality opinion). °

Since the date of the Gregg decision, 23 states have enacted new

death penalty statutes. Not one of these statutes contains a provision

precluding the consideration of lesser included offenses.

B. The Due Process Violation. |

An Alabama capital defendant can be convicted and sentenced to die

in cases where the jury has not been convinced, beyond a reasonable doubt, of

all the elements of the offense charged. This absurd result is made possible

by the statutory provision which precludes consideration of factually estab-

lished lesser included offenses.

When a jury is precluded from considering lesser offenses, and

where one of the elements of the offense charged remains in doubt, but the |

accused is plainly guilty of some offense, the jury is likely to resolve its |

doubts in favor of conviction. Keeble v. United States, 412 U.S. 205 (1973). |

In the context of a capital case this means that if a jury is convinced that

an accused unjustifiably killed someone, but doubts that the requisite }

specific intent was present, faced with the lesser offense preclusion, it

will likely "resolve its doubts in favor of conviction", even though the

defendant may only be guilty of manslaughter. Id. at 213. In such a

situation, the statute enables the state to obtain a capital conviction with-

out proving the element of intent beyond a reasonable doubt.

Such an erosion of the reasonable doubt standard violates due pro-

cess. Due process requires the state to prove every element of every offense

charged beyond a reasonable doubt. Addington v. Texas, 25 Crim. L. Rptr.

3039 (May 2, 1979); In re Winship, 397 U.S. 358 (1970). In the words of Mr.

Chief Justice Burger,

9/ California, Delaware, Idaho, Illinois, Indiana, Kentucky,

Louisiana, Maryland, Mississippi, Missouri, Nevada, New Hampshire, New Mexico y

North Carolina, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, |

Tennessee, Virginia, Washington and Wyoming.

-13-

In the administration of criminal justice our

society imposes almost the entire risk of error

“pon itself. This is accomplished by requiring

under the Due Process Clause that the state

prove the guilt of an accused beyond a reason-

able doubt. 10/

By encouraging capital juries to disregard this heaviest burden of proof,

the Alabama statute reduces the risk on society and places it on the shoulders

of defendants. Such a system cannot be permitted to stand, particularly in

the context of capital cases, where the punishment is irreversible.

In Keeble, supra, the United States Supreme Court struck down a

statutory system which precluded the jury from considering lesser included

offenses. Holding that the federal Major Crimes Act could not be construed

to preclude a lesser offense instruction, the Court reasoned that a contrary

construction would expose defendants to a substantial risk of unwarranted

convictions, as follows:

True, if the prosecution has not established

beyond a reasonable doubt every element of the

offense charged, and if no lesser offense in-

struction is offered, the jury must, as a theo-

retical matter, return a verdict of acquittal.

But a defendant is entitled to a lesser included

offense instruction -- in this context or any

other -- precisely because he should not be ex-

posed to the substantial risk that the jury's

practice will diverge from theory. Where one

of the elements of the offense charged remains

in doubt, but the defendant is plainly guilty

of some offense, the jury is likely to resolve

its doubts in favor of conviction.

Id. at 212-213 (emphasis added).

The Supreme Court re-affirmed its position in Gregg v. Georgia,

supra. There the Court was faced with the argument that the availability of

a lesser offense instruction provided capital juries with too much discretion

to satisfy the concerns set forth in Furman v. Georgia, supra. The Court

rejected this argument, thereby eliminating any doubt as to the constitu-

tional importance of preserving a capital defendant's right to such an in-

struction. Specifically, the plurality opinion held that a criminal justice

system which, among other things, precludes lesser offense instructions

"would be totally alien to our notions of criminal justice” and "would be

unconstitutional". Gregg, supra, 428 U ‘. at 199-200, n. 50.

Lower federal courts have also held that preclusion of appropriate

10/ Addington, supra at 3041.

-14-

lesser offense findings jeopardize defendants’ rights to fair jury fact

finding. E.¢., Joe v. United States, 510 F.2d 1038, 1042 (10th Cir. 1975)

(holding Keeble should be applied retroactively in § 2255 collateral pro-

ceeding because deprivation of a lesser offense instruction "affected a

right which Keeble recognized as fundamental against the background of the

Due Process Clause"); United States v. Comer, 421 F.2d 1149, 1153-1154 (D.C.

Cir.) (reversing conviction for failure to give lesser offense instruction

on the ground that such an instruction would ensure that the jury would not

return a verdict “in disregard to the proof"); United States vs. Tsanas,

572 F.2d 340, 346 (2d Cir. 1978), cert. denied. 98 C.Ct. 1647 (1978) ("the

court should give the form of [lesser offense] instruction which the defendant

seasonably elects. It is his liberty that is at stake and the worst that can

happen to the Government under less rigorous instruction is his readier

conviction for a lesser rather than greater crime"); United States ex rel.

Powell v. Pennsylvania, 294 F.Supp. 849, 852 (E.D. Pa. 1968) (failure to

give lesser offense error requiring federal habeas corpus relief"). Accord:

United States ex rel. Matthews v. Johnson, 503 F.2d 339 (3d Cir. 1974).

Moreover, the unfairness of a system precluding lesser offense |

findings, as well as the dilvtion of the reasonable doubt standard caused by ,

such a system, has long been recognized by legal writers. Koenig, The Many - |

Headed Hydra of Lesser Included Offenses: A Herculean Task for Michigan

Courts, Vol. 1975, Detroit Coll. L. Rev. 41, 52 (Issue 1) ("If the jury is

allowed to convict only on the major offense, it may convict because it feels

that the defendant is guilty of something, and not because the state has

proved all elements of the charged crime beyond a reasonable doubt. Although

in fact the defendant might be guilty only of a lesser offense, he is con-

victed of a greater crime which carries more punishment than he deserves");

Comment, The Lesser Included Offense Doctrine In Iowa; The Gordian Knot

Untied, 59 Iowa L.Rev. 684 n, 5 (1974) -- ("[After quoting from the above

article, the author adds that] the lesser included doctrine mitigates against

this tendency by allowing the jury to correlate more closely the criminal

act than the criminal conviction. The outcome is “fundamentally fairer to

the defendant and fairer to the state, too"); Comment, The Lesser Included

af.

Offense Instruction -- Problems With Its Use, 3 Land and Water L.Rev. 587,

590 (1968) <"There are two obvious situations in which the ... non-use of’

lesser included offense instructions may be unfair ... the jury may be faced

with the choice either of acquitting a man who is obviously guilty of some

wrong or of finding guilty a man who is not guilty of the crime charged --

For example, when there is evidence to support second degree murder but only

first degree murder is instructed upon, the jury may have to choose between }

setting free a man whom they believe to be guilty of second degree murder or

convicting a man whom they do not believe guilty of first degree murder");

Comment, Jury Instructions or Lesser Included Offenses, 57 N.W L.Rev. 62,

64 (1972) ("... the danger is that a jury faced with a choice between con-

viction of a greater offense and acquittal will convict on insufficient

evidence rather than let a defendant they believe guilty of some wrong doing

go free.)"

Although the vice of a system precluding lesser included instruc-

tions is readily PABIES, gt, Court should see that, in application, the

vice is real and not imagined. Justice Jones of the Alabama Supreme Court

aptly described the all-too-real vice of such a system in his dissent in

Jacobs v. State, 361 So.2d 640, 649-51 (Ala. 1978):

That the statutory scheme of our death penalty

Act hampers, and thus impugns, the fact-finding

process, presenting the jury with a "Hobson's

choice", is dramatized by the voir dire in the

instant case.

ll/ The State may argue that the deficiencies of this provision

are remedied in each case by the juror's solemn oath to follow the in-

structions of the court. That is, in a capital case, the state would argue

that the jury would acquit a robbery-murder defendant if they found him

guilty of murder, but not guilty of robbery, because the Court would so

instruct them.

The holdings of the Supreme Court in Jackson v. Denno, 378 U.S.

368 (1964) and Bruton v. United States, 391 U.S. 123 (1968) refute this

contention. In both of these cases, in the context of instructions that

the jurors not consider certain incriminating evidence, the court recognized

that jurors cannot and do not always follow such instructions. By analogy,

this reasoning should apply to instructions to jurors that they acquit

defendants whom they are convinced are guilty of murder, since such a

"jury is likely to resolve its doubts in favor of conviction". Keeble,

Supra.

-16-

"A. [Prospective juror Jack R. Chandler]

What you're saying is there's no in-

between?

"Q. No in-between.

"A, Even though he was found guilty of a

lesser crime?

"“Q. Yes, sir.

"A, He still would get the death penalty,

even though it was a lesser crime?

"Q. Either that, or you turn him loose

completely.

"A, Well, why don't you have an in-between?

Why is it either 'do' or 'don't'?

"Q. I can't answer that question; but would

you hesitate to find the defendant not

guilty? 12/

"A. Yeah, I'd hesitate to find him not guilty."

(The trial Judge sustained the challenge for cause of this

prospective juror). An earlier examination proceeded

thusly:

"Q. If the evidence is not strong enough to

justify your finding the defendant

guilty and fixing the death penalty --

yet guilty of a crime of some kind --

do you think that you could acquit the

defendant under those conditions?

"A, [Prospective Juror Earl D. Allison] Not

if he was guilty of some crime. No sir."

Furthermore, the trial Judge, at the post-trial sentence

hearing acknowledged the jurors' frustration in this regard:

The jurors do not like this law. That seemed to be the

comment we got when each juror was questionedon voir dire. . .

Alarmingly, this system has resulted in a veritable march to death

row. Since the lesser offense preclusion went into effect, amazing results

have been achieved. During the first 33 months of the law's operation,

Alabama prosecutors attained a 96% conviction rate in capital cases where

the defendant pleaded not guilty and an 86% death sentence rate where the

12/ This excerpt also refutes the incredible contention by the

State in its previous briefs that, the jury's ability to mistry a case

eliminates the Hobson's choice. Alabama's trial judges, at least, are of

the opinion that there is "no in-between". Like the judge quoted above,

they have regularly sustained challenges for cause to jurors who expressed

reservations about the "all or nothing" choice.

Moreover, a mistrial is declared when a jury cannot reach a verdict,

due to opposing views, in contrast to a situation where the jury is in

agreement as to a disposition of the case. Thus, even in a mistrial, all

jurors must make a Hobson's choice.

Finally, to this writer's knowledge, no capital jury in Alabama

has been instructed that a mistrial is cae of its options. In one case,

State of Alabama v. James Willie Cochran, (appeal pending in the Alabama

Court of Criminal Appeals), the defense requested such an instruction. The

prosecution objected ad the trial court refused to give it.

Cent a Ft. PA ey ee ae ee | te)

13/

jury rendered a verdict of guilty and the issue of punishment was contested.

These stati.c‘cs starkly deviate from the expected norm stated by the Supreme

Court in Woodson v. North Carolina, 428 U.S. at 285, n. 31: "Data compiled

on discretionary jury sentencing of persons convicted of capital murder reveal

that the penalty of death is generally imposed in less than 20% of the cases".

Therefore, the results achieved by the application of this statute underscore

the need to overturn it.

Plain and simply, this provision of the Alabama law violates due

process, both in theory and in practice, because it undercuts the foundation

of the criminal justice system, the requirement that the state prove every

element of the offense charged beyond a reasonable doubt.

C. The Equal Protection Violation.

This provision of the Alabama law also violates the equal protection

rights of individuals charged with capital offenses. Because non-capital

Alabama defendants continue to have the safeguard of a lesser included in-

struction, the law in effect singles out capital defendants. It thereby

burdens two fundamental constitutional rights: the right of all persons to

life and the right of an accused to require the state to prove guilt beyond a

reasonable doubt.

A right is fundamental if it is "explicitly or implicitly guaranteed

by the Constitution". San Antonio School District v. Rodriguez, 411 U.S. 1,

33 (1973). The right of all persons to life is explicitly guaranteed in the

Fifth and Fourteenth Amendments to the Constitution. The right of an accused

to require the state to prove guilt beyond a reasonable doubt is implicitly

guaranteed by the Due Process Clause of the Fourteenth inant Therefore,

under the test enunciated by the Supreme Court in San Antonio, the rights

involved in the case sub judice are fundamental.

Because these rights are fundamental, the statute must undergo strict

13/° See Appendix C.

14/ See Addington, supra. at 3041 ("This is accomplished by re-

quiring under the Due Process Clause that the State prove the guilt of an

accused beyond a reasonable doubt"), an? Winship, supra at 364 ("Lest there

remain any doubt about the constitutional stature of the reasonable-doudt

standard, we explicitly hold that the Due Process Clause protects the accused

against conviction except upon proof beyond a reasonable doubt of every fact

necessary to constitute the crime with which he is charged").

scrutiny to determine whether it is “necessary to promote a compelling govern-

mental int rest’. Shapiro v. Thompson, 399 U.S. 618, 634 (1969). Alabama's

death penalty statute cannot withstand scrutiny under this standard.

The only interest asserted by the state in support of the statutory |

preclusion of lesser offense consideration in capital cases is the need to

comply with the Supreme Court's ruling in Furman, by controlling undue jury |

discretion and SPER This objective falls short of being "necessary)

to promote a compelling governmental interest".

Gregg and its companion cases squarely held that the concerns ex-

pressed in Furman for consistently-applied capital sentencing could be

satisfied by capital punishment statutes which permit juries to consider

16/

lesser included offenses. The Gregg plurality opinion of Justices Stewart,

Powell and Stevens stated that elimination of lesser included instructions

would be "totally alien to our notions of criminal justice". 428 U.S. at

199-200, n. 50.

‘

The upholding of the Georgia, Florida and Texas statutes demonstrates;

{

the lack of a necessity to withdraw consideration of lesser included offenses |

from capital juries in order to comply with Furman. The laws of these three

states, as well as those of the other thirty states (excluding Alabama) with

capital punishment laws, illustrate the less restrictive means available to

meet the objective of a constitutional capital sentencing structure. Thus,

the preclusion of factually established lesser included offenses is not

"necessary" to promote any compelling governmental interest.

’ D. The Eighth Amendment Violation.

Alabama's unique “kill 'em or set ‘em free" statutory scheme also

violates the cruel and unusual punishment provision of the Eighth Amendment.

It has already been established that the preclusion of lesser offenses: (1)

unnecessarily hampers the fact-finding process; (2) undercuts the constitu- ,

tional requirement that the state prove guilt beyond a reasonable doubt; (3)

has resulted in an inordinately high conviction and death sentence rate; and

15/ This assertion appears at p. 24 of Respondent's Brief In

Opposition to Petition for Writ of Certiorari in Jacobs v. Alabama.

16/ See Gregg, supra at 163, 199; Proffitt v. Florida, supra, 428

U.S. at 254; and Jurek v. Texas, supra, 428 U.S. at 274/

-19-

(4) has singled out capital defendants, the very persons who have the most

to lose, their lives. In addition, this portion of the Alabama statute fails

to reflect "contemporary community values" and "contemporary standards of

usage contrary to the requirements of the Eighth Amendment.

To survive Eighth Amendment scrutiny, newly enacted death penalty

statutes must reflect societal acceptance rather than an attempt merely to

retain the death penalty in a form consistent with the siesta The

state has never presented evidence of societal acceptance of its unique

statutory scheme, which has the practical effect of obviating the necessity

for proof beyond a reasonable doubt only in cases where the penalty is death.

The state's failure to demonstrate societal acceptance of its

statutory scheme becomes more conspicuous when considered in the light of the

Supreme Court's decision in Coker v. Georgia, 433 U.S. 584 (1977). In Coker

the Court struck down the Georgia statute which permitted the punishment of

death for rape, because it violated the Eighth Amendment proscription of crue!

and unusual punishments. In so holding, the Court stressed the need to con-

sider the legislative attitudes of other states to determine whether a

particular statutory provision violates the Eighth Amendment. Id. at 592.

After tracing the legislative history of the death penalty for rape

in the United States, the Court found Georgia's solitude in providing capital

punishment for rape to be persuasive evidence of an Eighth Amendment viola-

tion. Specifically, the Court stated:

The upshot is that Georgia is the sole juris-

diction in the United States at the present

time that authorizes a sentence of death when

the rape victim is an adult woman, and only

two other jurisdictions provide capital punish-

ment when the victim is a child.

Id. at 595-6.

Likewise, Alabama is the sole jurisdiction in the United States at

the present time that prohibits *he consideration of factually established

lesser included offenses in capital cases. As such, under Coker, Alabama's

solitude is persuasive evidence of an Eighth Amendment violation.

17/ See, e.g., Woodson v. North Carolina, supra, 428 U.S. at 295-6.

18/ Id, at 298.

-20~

To summarize, the state has made no showing that Alabama's "one of a

kind", “kil. ‘em or set ‘em free" provision of its capital punishment statute

reflects contemporary community values and standards of decency. Therefore,

this provision of the statute cannot be applied consistently with the "Eighth

and Fourteenth Amendments’ requirement that the state's punishment power be

exercised within the limits of civilized standards", Woodson, supra at 301, |

{

and it must be struck down.

aoe eo

Il |

THE STATUTORY PROVISION WHICH REQUIRES

THE JURY TO IMPOSE A DEATH SENTENCE UPON

EVERY CAPITAL MURDER CONVICTION CONTRA-

VENES THE EIGHTH AND FOURTEENTH AMEND- j

MENTS OF THE UNITED STATES CONSTITUTION,

BY ENCOURAGING ARBITRARY AND WANTON JURY

DISCRETION.

As previously noted, the Alabama death penalty statute requires the

jury to "fix the punishment at death" whenever it convicts a defendant of a

capital offense. § 13-11-2(a). The mandatory character of this jury-fixed |

death sentence taints Alabama's capital trial procedures with one -- although |

admittedly not all -- of the vices which the Supreme Court condemned in '

Woodson v. North Carolina, supra, 428 U.S. at 302-303 (plurality opinion), |

and Stanislaus Roberts v. Louisiana, supra, 428 U.S. at 334-335 (plurality

opinion). Under the Alabama scheme, “it is only reasonable to assume that

many juries ... will continue to consider the grave consequences of a con-

viction in reaching a verdict", Woodson v. North Carolina, supra, 428 U.S.

at 303, and so will exercise a "de facto sentencing discretion", Stanislaus

Roberts v. Louisiana, supra, 428 U.S. at 335, by refusing to convict defen-

dants whom they feel do not deserve to die, even though unquestionably guilty.

Indeed, the Alabama Supreme Court made exactly this assumption, and gave it

the stamp of state judicial approval:

We are further convinced that trial juries will

consider the serious consequences of a guilty

verdict and wil] either refuse to fix the penalty

at death, or will acquit the defendant.

Jacobs v. State, supra, 361 So.2d at 645. Thus the question is squarely

presented whether this "separate deficiency", Woodson v. North Carolina, supra,

428 U.S. at 302, which the Court relied upon to invalidate the North Carolina !

and Louisiana statutes, also invalidates Alabama's.

-2l-

This deficiency of the Alabama statute is complicated by the over-

lapping def.ci>ncy discussed in the previous section of this brief. That is,

while on the one hand juries may acquit guilty defendants whom they feel do

not deserve to die, other juries may convict defendants who are not guilty

of capital murder, but are guilty of a lesser included offense, because they

do not want to set free a "murderer" or "manslaughterer". A statute which by |

its mandatory nature serves as a vehicle to set free guilty capital murderers

on the one hand, and to sentence non-capital offenders to die on the other

hand, cannot pass constitutional muster, because, as in North Carolina and

Louisiana, the demand that the jury declare for life or death by its vote H

on innocence or guilt has “simply papered over the problem of unguided and

unchecked jury discretion" and failed to "fulfill Furman's basic requirement

by replacing arbitrary and wanton jury discretion with objective standards

to guide, regularize, and make rationally reviewable the process for imposing

a sentence of death". Woodson v. North Carolina, supra, 428 U.S. at 302, 303.

It is no answer to say, as the Alabama Supreme Court has said, that

the post-jury-verdict judicial hearing on aggravating and mitigating circum-

stances remedies this deficiency. Certainly this judicial hearing will not

lessen the arbitrariness of the jury's decision. In the first place, the

jurors may not even be aware that such a hearing exists. If the jurors do

know about it, their knowledge certainly will not inform or guide their

deliberations in any regular or reviewable channels. The jury's willingness

or unwillingness to subscribe to a death verdict can still express itself

only "lawlessly" under the guise of a guilt/innocence determination, Woodson

19/

v. North Cerolina, supra, 428 U.S. at 303, and be formed only upon the record

of the trial of guilt or innocence, lacking as it usually is in'[mJuch of the

information that is relevant to the sentencing decision", Gregg v. Georgia,

428 U.S. at 190 (plurality opinion). Such speculation as the jury may indulge

19/ The majority opinion of the Alabama Supreme Court in Jacobs v. ,

State, supra, 361 So.2d at 643, admits, as it must, that the jury obviously |

is not provided with guidelines to aid it in fixing the punishment; in fact,

the statute directs the jury, if it finds the accused guilty, to fix the

punishment at death. The jury has no discretion to fix any other punishment.

~O2e

in regarding the trial judge's possible reduction of [ts verdict introduces

nothing but 2n additional dimension of vagary into the process. i

Moreover, the jury's sense of accountability is likely to be i

attenuated by whatever knowledge it may have of the judge's power to reduce

the sentence it has "fixed". The entire sentencing process is not thereby

made more reliable, but less responsible. For, as we shall see in the follow-

ing subsection of this brief, the Alabama procedure strongly encourages the

judge to accept, not "refuse to accept", the jury's death verdict. The

prospect of each nominal sentencing agent deferring to the other while the

defendant suffers the death sentence that is statutorily required to be fixed |

in the jury's verdict holds no promise of either reliability or censumnseabeel

Finally, the trial judge does not review the jury's verdict in any |

sense. He has no more capability that his North Carolina and Louisiana

counterparts had to "check arbitrary and capricious exercise of [the jury's]

... power". Woodson v. North Carolina, supra, 428 U.S. at 303. If the jury

votes for death, he may choose to supersede it; but his choice cannot be made

upon the basis of any understanding of its unfathomable verdict. In short,

as Justice Jones wrote in dissent in Jacobs v. State, supra, 361 So.2d at

650, the judge's "subsequent consideration of mitigating factors cannot

20/

rectify the unconstitutionally unreliable sentence already imposed". —

20/ Of course, if one indulges the assumption -- contrary to

Woodson and Stanislaus Roberts -- that the jury's verdict will not reflect

sentencing considerations but will respond entirely to questions of guilt

or innocence and to the jury's statutory obligation to fix the punishment

upon conviction at death, then the Alabama procedure raises the constitu-

tional issue which was included in the grant of certiorari, but whose decisio

was reversed, in Lockett v. Ohio, supra: whether juries can be wholly ex-

cluded from participation in the capital sentencing decision. That issue is |

also raised, albeit in somewhat different form, if the jury's participation

in capital sentencing is conditioned upon its "willingness to act lawlessly", :

Woodson v. North Carolina, supra, 428 U.S. at 303. Alabama juries either

have no sentencing power, or they have a lawless and arbitrary sentencing {

power: In either event, the Alabama system violates the Eighth and Four-

teenth Amendments.

-23-

Ill

THE FAILURE OF ALABAMA'S CAPITAL

SENTENCING SCHEME TO REQUIRE THE

STATE TO PROVE THE EXISTENCE OF

AGGRAVATING CIRCUMSTANCES BEYOND

A REASONABLE DOUBT RENDERS IT

VIOLATIVE OF THE DUE PROCESS CLAUSE.

Alabama's capital sentencing scheme does not require the state to

prove the existence of aggravating circumstances beyond a reasonable doubt.

Instead, a trial judge who fixes the punishment at death must merely list

“one or more of the aggravating circumstance ... which it finds exists" and

“any of the mitigating circumstances ... which it finds insufficient to out-

weigh the aggravating circumstances". § 13-11-4 (1) and (2). Such a system

violates due process.

The sentencing process in a capital case must comport with due pro-

cess. Such was the holding of the Supreme Court in Gardner v. Florida, 430

U.S. 349 (1977). Im the words of Mr. Justice Stevens, "[I]t is now clear

that the sentencing process, as well as the trial itself, must satisfy the

21/

requirements of the Due Process Clause". 430 U.S. at 358.

;

}

‘

Moreover, an accused's right to require the state to prove his |

‘

guilt beyond a reasonable doubt is a due process right. In re Winship, supra;

Addington v. Texas, supra, 25 Crim. L. Rptr. at 3041. Therefore, due process

can be satisfied only when the state proves the existence of aggravating

circumstances, beyond a reasonable doubt. Because the Alabama statute has

no such requirement, and because Alabama trial judges have not construed

the statute to implicitly carry such a requirement, all death sentences thus

far meted out under the present statutory scheme do not comply with the Due

22/

Process Clause.

The failure of Alabama's statute to require proof of aggravation

beyond a reasonable doubt not only violates due process, but also fails to

satisfy the higher "need for reliability in the determination that death is

21/ See also Presnell v. Georgia, U.S. _, 58 L.Ed. 2d 207, 211

(1978) ("These fundamental principles of procedural fairness apply with no

less force at the penalty phase of a trial in a capital case than they do in

the guilt-determining phase of any criminal trial.").

22/ The Georgia, Florida, and Texas statutes upheld by the Supreme

Court in 1976 all require proof of aggravating circumstances beyond a

reasonable doubt.

the appropriate punishment" in capital cases. This greater need for reliabil-|

ity in cervical cases was first articulated in Woodson, supra, 428 U.S. at 30, |

as follows: |

Death, in its finality, differs more from life i

imprisonment than a 100-year prison term differs

from one of only a year or two. Because of that |

qualitative difference, there is a corresponding

difference in the need for reliability in the j

determination that death is the appropriate

punishment in a specific case.

Most recently, Mr. Chief Justice Burger cited this rationale in support of the

Court's conclusion that an individualized sentencing decision is required in

23/

capital cases. Lockett v. Ohio, supra, 57 L.Ed. 2d at 989 (1978).

Also in the context of the capital sentence process, Mr. Justice

White relied upon the "greater need for reliability" standard in concurring |

in the reversal of a Florida capital defendant's death sentence, in Gardner, |

supra. Unlike the plurality of the Court, he found it unnecessary to rely |

on the due process clause, however, because, in his opinion, the procedure j

involved failed "to meet the 'need for reliability in the determination that |

death is the appropriate punishment’ which the Court indicated was required

in Woodson". Id., 430 U.S. at 364. By the same token, in the case sub |

judice, the lack of a requirement that aggravation be proved beyond a reason- |

able doubt fails to meet the "greater degree of reliability" that is re-

quired "when the death sentence is imposed". Lockett, supra at 989.

The Nebraska Supreme Court's decision in State v. Simants, 250 N.W. |

2d 881 (Neb. 1977) demonstrates the validity of this conclusion. Simants

involved the Court's seminal interpretation of Nebraska's post-Furman capital

punishment statute.

Like the Alabama statute, the Nebraska statute does not specifically

require proof of aggravating circumstances beyond a reasonable doubt. Accord-

ingly, Simants argued that the failure to require proof of aggravation beyond

a reasonable doubt rendered the statute unconstitutional. Citing the greater |

"need for reliability" language of the Supreme Court in Woodson, quoted above, |

the Court construed the "intent of the act" to require proof of aggravating |

23/ “We are satisfied that this qualitative difference between

death and other penalties calls for a greater degree of reliability where

the death sentence is imposed."

-25- |

circumstances beyond a reasonable doubt, even though the language of the

statute ¢‘a n* specifically so require. Id. at 888.

Therefore, this Court can choose to follow one of two courses of

action. It can either follow the lead of the Nebraska Supreme Court and hold

that the Alabama statute implicitly requires proof of aggravation beyond a

reasonable doubt, or it can strike down the statute. If the Court adopts the

first alternative, all forty-three death sentences imposed in Alabama will

have to be remanded to the trial courts for an initial factual determination

of whether any of the statutory circumstances were established beyond a

reasonable doubt. If the Court chooses the second course, the legislature

will have to correct this and the other enumerated deficiencies of the statute.

In summary, whether the Court chooses~to rely on the Woodson higher-

standard-of-reliability rationale or the Gardner due process holding, it must

order that some corrective action be taken, because the Constitution simply

will not permit a death sentence to stand where the aggravating circumstances

24/

upon which it was based were not proved beyond a reasonable doubt.

THE STATUTORY PROCEDURE WHICH DEFERS

CONSIDERATION OF AGGRAVATING AND MITI-

GATING CIRCUMSTANCES UNTIL AFTER A JURY

HAS IMPOSED A SENTENCE OF DEATH VIOLATES

THE EIGHTH AND FOURTEENTH AMENDMENTS, BY

PLACING THE TRIAL JUDGE IN A POSITION OF

HAVING TO REDUCE A JURY-FIXED DEATH SEN-

TENCE IF HE DEEMS THE DEATH PENALTY IN-

APPROPRIATE.

It is clear that “in capital cases the fundamental respect for

humanity underlying the Eighth Amendment ... requires consideration of the

character and record of the individual offender and the circumstances of the

particular offense as a constitutionally indispensable part of the process

of inflicting the penalty of death". Woodson v. North Carolina, supra, 428

U.S. at 304. It is also clear that "the sentencing process, as well as the

trial itself, must satisfy the requirements of the Due Process Clause ...

24/ Defendants also submit that this provision of the statute is

unconstitutional because it requires defendants to bear the risk of non

persuasion at the sentencing hearing. ‘iowever, because the Court must

adopt one of the alternative courses listed above, it is unnecessary for the

court to address this contention. See Lockett, supra, 57 L.Ed. 2d at 992,

n. 16 (1978).

-26-

{because] [t]he defendant has a legitimate interest in the character of the

procedure vw. ich leads to the imposition of sentence even if he may have no

right to object to a particular result of the sentencing process". Gardner

v. Florida, supra, 430 U.S. at 358 (plurality opinion). Any capital sentenc-

ing procedure, then, must assure "reliability in the determination that death

is the appropriate punishment in a specific case", Woodson v. North Carolina,

supra, 428 U.S. at 305 and it must comport with fundamental fairness,

Witherspoon v. Illinois, 391 U.S. 510 (1968). |

An Alabama trial judge comes to the "constitutionally indispensable |

part of the process of inflicting the penalty of death" only after a jury

verdict has been publicly pronounced -- and publicized -- which sentences the |

defendant to die without consideration of mitigating circumstances. The |

judge is thus placed in the exposed position of having to override the jury's

death sentence, and to take the public heat of "refusing to accept" a death

sentence, in order to give the defendant the benefit of the sentencing hear-

ing which is his constitutional due. Such a procedure is equivalent, at the

sentencing stage, to beginning a trial on the issue of guilt or innocence by

publicly proclaiming that the defendant is guilty and that a trial will now

be held to determine whether he should be found guilty.

Indeed, Alabama's death-sentencing procedure is worse, because the

pre-announced verdict of death carries the imprimatur of a jury of twelve

citizens who, in public contemplation, appear to have sat in judgment on |

the case even though they have not in fact observed federal constitutional |

standards in fixing the sentence of death -- standards which require that the

sentencing agency "consider on the basis of all relevant evidence not only

why a death sentence should be imposed, but also why it should not be imposed"

Jurek v. Texas, supra, 428 U.S. at 271. A procedure which compels the judge

to place himself in a publicly unfavorable light in order to do his minimal |

25/ '

constitutional duty is too fraught with peril to be permitted consistently

25/ Such a process embroils the ju. in the passion of the day and

forces him to “assume primary responsibility in choosing between competing

political, economic and social pressures". Dennis v. United States, 341 U.S.

494, 525 (1951) (Frankfurter, J., concurring in affirmance of judgment).

-2)-

ee Re eS wee =

26/

with due process, and too unreliable to pass Eighth Amendment muster.

fuscice Jones, In his dissent In Jacobs v. State, supra, 360 So.2d

at 605, noted the "outery of unjustified criticism attendant with a trial

judge's reduction of a sentence to life imprisonment without possibility of

parole, after a jury has returned a sentence of death".

I call attention to the case of State v. Nolen,

Circuit Court No. 7702059 (February 17, 1978),

in which the trial Judge was made the object of

voluminous public ridicule, including a resolution

of condemnation by the State Legislature, numerous

newspaper editorials and cartoons, Letters to the

Editor, speeches, etc. To be sure, none of this

criticism, to my knowledge, was based upon the

merits of the statutory function of the judiciary;

rather it was directed toward the "Unwarranted"

tampering by a trial Judge with a jury verdict.

Id. at 650 n. 3.

Even if a judge were able and willing to disregard the jury sentence

of death, the statute specifically instructs him to consider it. He is

directed to weigh "the aggravating and mitigating circumstances, and the

fixing of the punishment at death by the jury". § 13-11-4 (emphasis added).

A system which so plainly "stack[s] the deck against" the defendant, Wither-

spoon v. Illinois, supra, 391 U.S. at 523, results in a distortion of "the

balance of forces between the accused and his accuser", Wardius v. Oregon,

412 U.S. 470, 474 (1973). Where the defendant's life is at stake, it also

ignores the “vital importance to the defendant and to the community that

any decision to impose the death sentence be, and appear to be, based on

reason rather than caprice or emotion", Gardner v. Florida, supra, 430 U.S.

at 358.

Further consideration will be given below to the Eighth and

Fourteenth Amendment violations in the instant case resulting from the trial

judge's consideration of the jury's death sentence in his deliberations.

26/ Cf. Connally v. Georgia, 249 U.S. 245 (1977); Ward v. Village

of Monroeville, 409 U.S. 57 (1972); Tumey v. Ohio, 273 U.S. 510 (1927). See

also Gardner v. Florida, supra, 430 U.S. at 403 ("Florida argues that trial

cee, ee ee

judges can be trusted to exercise their discretion in a responsible manner...

However acceptable that argument might have been before Furman v. Georgia,

it is now clearly foreclosed"); Johnson v. Mississippi, 403 U.S. 212 (1971).

~28-

THE STATUTORY PROVISIONS WHICH LIMIT

CIRCUMSTANCES OF MITIGATION VIOLATE j

THE EIGHTH AND FOURTEENTH AMENDMENTS

BY PREVENTING THE SENTENCER FROM GIVING

INDEPENDENT MITIGATING WEIGHT TO ASPECTS

OF THE DEFENDANT'S CHARACTER AND RECORD |

AND TO CIRCUMSTANCES OF THE OFFENSE PROF-

FERED AS A BASIS FOR A SENTENCE LESS THAN

DEATH.

The Alabama statute specifies seven narrowly defined factors which

27/

"shall be" mitigating circumstances and which shall be weighed by the trial |

28/

judge against the aggravating circumstances to determine whether the judge

will accept or refuse to accept the jury-fixed death sentence, §§ 13-11-3,

13-11-4. The mitigating circumstances deal with the defendant's prior t

29/ 30/!

criminal record, his mental state at the time of the commission of the crime,

31/ 1

his age and his participation in the criminal act which has resulted in his |

32/

jury sentence of death.

By the plain language of the statute, the trial judge is not per- j

mitted to weigh any non-statutory mitigating circumstance in reaching his

33/

decision. Nor has the Alabama Supreme Court construed the statute to permit

27/ § 13-11-7.

28/ § 13-11-6.

29/ § 13-11-7(1).

30/ § 13-11-7(2), (5), (6).

31/ § 13-11-7(7).

32/ § 13-11-7(4). The seventh mitigating circumstance deals with |

the rare situation in which the victim was a participant in his own death.

§ 13-11-7(3). |

33/ All references throughout the statute are to the specific

statutory mitigating circumstances. § 13-l1-3 requires that the trial judge

hear evidence relating to the specific statutory mitigating circumstances.

§ 13-11-4 requires that the court weigh "the aggravating and mitigating cir-

cumstances", and § 13-11-4(2) requires that a trial court support a death

sentence by making written findings which shall at least include:

(2) Any of the mitigating circumstances in

§ 13-11-7 which it finds insufficient to out-

weigh the aggravating circumstances.

Finally, § 13-11-7, in listing mitigating circumstances, contains the follow-

ing limiting language:

Mitigating circumstances <!.all be the following... |

(Emphasis added).

-29-

34/

the consideration of non-statutory mitigating circumstances. In sustaining

its const‘cuc. mality, the court has relied instead upon the provision of

§ 13-11-3 which permits the introduction of evidence as to “any matter that

the court deems relevant to sentence". Jacobs v. State, supra, 361 So.2d at

35/

652-653.

Thus, a defendant is permitted to offer evidence relevant to sentence}

but under the terms of the statute, all such evidence must be considered in

36/

relation to the limited statutory mitigating circumstances. This approach

to mitigation is indistinguishable from that of the Ohio statute condemned

in Lockett, which provided that the death penalty was precluded "when, con-

sidering the nature and circumstances of the offense and the history, charac-

ter, and condition of the offender, one or more of [three enumerated mitigat-

ing circumstances]... is established..." Ohio Rev. Code Ann. § 2929.04(B)

(1975 Repl. Vol), quoted in Lockett v. Ohio, supra, 57 L.Ed. 2d at 991-2.

Notwithstanding that the Ohio Supreme Court had construed this provision to

mean that "the sentencing judge or judges may consider factors such as the

age and criminal record of the defendant in determining whether any of the.

mitigating circumstances is established", id. at 2966, the Ohio procedure

was invalidated because it prevented the sentencer "from giving independant

mitigating weight to aspects of the defendant's character and record and to

circumstances of the offense proffered in mitigation", id. at 2965 (emphasis |

added). The Court further noted that "[nJone of the statutes we sustained |

in Gregg and the companion cases clearly operated at that time to prevent

the sentencer from considering any aspect of the defendant's character and

record or aay circumstances of his offense as an independently mitigating

factor’. Id. at 2966.

34/ In his separate opinion in Jacobs v. State, supra, 361 So.2d at

648, Chief Justice Torbert wrote that "(t]he list of mitigating circumstances

in section 13-11-7, Code of Alabama, 1975, is exclusive...".

35/ “It is readily apparent, therefore, that Alabama's sentencing

scheme broadly allows the accused to present evidence of mitigating circum-

Stances." Jacobs v. State, supra, 361 So.2d at 652-652.

36/ In the recent case of Ex parte Recardo Cook (Re: Recardo Cook

v. State of Alabama), SC 77-320 (Ala. Sup. Ct. Sept. 10, 1978), the Alabama

Supreme Court described this shoehorning process as "categorizing the evidencel

received and balancing the aggravating circumstances with the mitigating cir-

cumstances",

- ere 2 ee ee ae ae

-30- |

Alabama's statute operates the same way. Therefore, the Court's

decision ‘nu Lc>kett mandates a declaration that the Alabama statute violates

the Eighth and Fourteenth Amendments.

THE FAILURE OF THE ALABAMA DEATH PENALTY

SCHEME TO PROVIDE A SYSTEM OF COMPARATIVE

REVIEW OF SENTENCES AND TO EMPOWER THE

APPELLATE COURTS TO VACATE DEATH SENTENCES

IN APPROPRIATE CASES MAKES THAT SCHEME VIO-

LATIVE OF THE EIGHTH AMENDMENT'S PROSCRIPTION

AGAINST CRUEL AND UNUSUAL PUNISHMENT.

In order to pass constitutional muster, a death penalty sentencing

scheme must eliminate the arbitrary and capricious application of the death

sentences, Furman v. Georgia, supra, 408 U.S. at 309-310 (Justice Stewart

concurring). Such a scheme must provide a reliable system for determining |

that death is the appropriate punishment in a specific case. Presnell v. !

Georgia, supra; Woodson v. North Carolina, 428 U.S. at 305.

An important component of a reliable, and thus constitutionally |

acceptable sentencing scheme, is "prompt judicial review of the [sentencing]..,

decision in a court with statewide jurisdiction [as] a means to promote the

even handed, rational, and consistent imposition of death sentences under the

law. Jurek v. Texas, supra at 276. This appellate review is constitutionally,

necessary to "assure that the death penalty will not be imposed on a capri-

ciously selected group of convicted defendants", Gregg v. Georgia, supra at

204, and "to ensure that [death sentences]... are consistent with sentences

imposed in similar circumstances", Proffit v. Florida, supra at 253. The

Supreme Court noted with approval that the Georgia and Florida schemes pro-

vided for comparative review of death sentences to determine "whether the

[death] sentence [in each case] is disproportionate compared to those sen-

37/

tences imposed in similar cases", Gregg v. Georgia, supra at 198, and to

assure regular and even handed treatment of death sentences, Proffitt v.

37/ The Georgia appellate scheme for comparative review is exten-

sive. See Gregg v. Georgia, supra, 428 U.S. 166-168; Id. at 223-224 (Justice

White concurring). The court is required to compare “each death sentence with.

the sentences imposed on similarly situa.ed defendants to insure that the

sentence of death in a particular case is not disproportionate. Gregg v.

Georgia at i98.

mGie

— we e+ oe

38/

Florida, supra at 251. An important feature of both systems of appellate

review is ..ec *omparison of cases in which death is the sentence with cases

39/

wherein life sentences are imposed.

A further feature involves the power of both courts to vacate death

sentences in cases where the court affirms the conviction in order to prevent

an arbitrary and capricious application of their capital punishment statute.

As the Supreme Court noted in Proffitt,

The Supreme Court of Florida like that of Georgia

has not hesitated to vacate a death sentence when

it has determined that the sentence should not

have been imposed. Indeed it has vacated eight

of the 21 death sentences that it has reviewed

to date.

Proffitt v. Florida, supra at 253.

This dual appellate function of comparative appellate review of both

death and life sentences, coupled with the exercise of their power to vacate

inappropriate death sentences, provides a consistent, reliable method by

which the judiciary may check the arbitrary and capricious exercise of sen-

tencing power through a review of death sentences, Woodson v. North Carolina,

supra at 303. ‘

When the Alabama appellate review system in death cases is

measured by the benchmarks of Gregg, Proffitt and Woodson, it falls far short

of the constitutional standard. The Alabama death statute does not empower

Alabama courts to exercise comparative proportionate appellate review or to

vacate a death sentence in a case where the conviction is fair but where the

death sentence imposed, as statutorily authorized, is excessive, arbitrary or

38/ As the Supreme Court noted in Proffitt v. Florida, supra,

428 U.S. at 258-9, the Florida Supreme Court has adopted, without statutory

requirement, a comparative proportionality review similar to that of Georgia.

(Opinion of Justices Stewart, Powell and Stevens).

39/ See e.g. Gregg v. Georgia, supra at 219, n. 5 (Justice White

concurring); See also Slater v. State, 316 So.2d 539, 542 (Fla. 1975), where-

in the court remarked,

We pride ourselves in a system of justice that

requires equality before the law. Defendants

should not be treated differently upon the

same or similar facts. When the facts are the

same, the law should be the same.

~392<

axes +> an-earpanenamapeiad

ee a ee = ee ne oe

40/

disproportionate when compared to the sentence in other cases.

Tacce appears to be no special procedure for comparative review of

death cases, and the courts themselves do not demonstrate through their

opinions that they are undertaking any sort of comparative review. j

\ 41/

Review of convictions in death cases in Alabama is automatic. Under

the two tier Alabama appellate system, the first review is conducted by the

Alabama Court of Criminal Appeals. To date, the Court of Criminal Appeals

has issued opinions in 23 cases wherein the appellant had been sentenced to

| eae” They have affirmed 19 of the sa aa and death sentences, re-

versed the convictions in four of the cases and remanded two others for

written factual findings and/or new sentencing SENS a The court did not

} reduce or vacate any of the death sentences which came before wee

i It is clear from the Court's opinions that it does not exercise any

eee

|, sort of comparative review of the most minimal kind. It is also patently

|, Obvious that no attempt is made to compare death sentences to cases where life

{

40/ The statute provides that the "judgment of conviction and sen-

tence of death shall be subject to automatic review as now required by law".

| § 13-11-5. This provision clearly has reference to the Alabama Automatic

i Appeal Act § 12-22-241. There is no mention of comparative review. That

i} act does not empower nor require the court to review the appropriateness of

the death penalty in each case where it is imposed nor does it empower the

court to vacate inappropriately awarded death sentences. Indeed, under pre-

sent Alabama law the appellate courts of the state do not have any authority

|, to modify or commute a death sentence properly imposed. Brown v. State, 288 |

i Ala. 680, 264 So.2d 549 (1971); Liddell v. State, 287 Ala. 299, 251 So.2d 601 |

:, (1971). The Alabama Courts are to be commended for their adoption of the

| plain error rule, Ala. R. App. Pro. 39(K). The rule adoption, however, does |

not remedy the constitutional defect. |

41/ The Alabama Court of Criminal Appeals, under § 12-22-1500, auto-

| maticially reviews convictions in death penalty cases. Review in the Alabama

' Supreme Court is also automatic through writ of certiorari. Ala. R. App. Pro.|

| 39(c).

42/ See Appendix D.

43/14. |

44/ Id.

45/ It is interesting to note that the Florida Supreme Court vacated;

8 of the first 21 death sentences that it reviewed. Proffitt v. Florida,

supra at 253.

46/

without parole is the sentence.

Tr, Javobs v. State, 361 So.2d 607, 633 (Ala. Cr. App. 1977), the

Court of Criminal Appeals discussed its review power, noting,

Since the adoption of the Automatic Appeals Act

in 1943, the Supreme Court of Alabama has re-

viewed approximately ninety-five death cases

and has reversed 25 of them for various reasons

including excessive punishment, and where the

verdict was contrary to the great preponderence

of the evidence.47/

No mention is made of comparative review or of the power to reduce sentences |

in cases where the verdict is supported by the evidence but the capital sen-

tence is inappropriate.

With the post-Jacobs cases, the Court of Criminal Appeals has

dropped even this pretext of review. Their opinions reflect a perception that

it is their function to review death penalty cases for error, not to exercise

comparative review and vacate inappropriately brought death sentences. This

perception is clearly a correct one under Alabama law. § 12-22-2411. For

example, in Case v. State, 4 Div. 640 (Ala. Cr. App., November 21, 1978) at

p. 43, the court notes,

We have carefully searched the record for errors i

injuriously affecting the substantial rights of

appellant and have found none. Death is the pen-

alty of the law, and the penalty is just. '

In Bracewell v. State, 4 Div. 646 (Ala. Cr. App., January 30, 1979)

at p. 30, the court states, "No error is reflected in the record and the

judgment of conviction is affirmed". The court's other opinions contain

eS -Oe Ca ee oe -e

46/ The court has reviewed at least 4 cases where life without

parole was the sentence. In each of the cases, the crime as committed and

the past record of the offender were bad, if not worse than cases in which i

death sentences were upheld by the Court of Criminal Appeals. See, e.g. Neal

v. State, 6 Div. 894 (Ala. Cr. App. May 1, 1979), and the cases referenced in |

Appendix D.

47/ The cases the court cites for this proposition are Easley v.

State, 246 Ala. 359 (1944) and Davis v. State, 245 Ala. 589 (1944). In

Easley, and Davis, the court reversed a death penalty conviction because the

"verdict was contrary to the great preponderance of the evidence". In neither,

case did the court compare the sentences or set aside the death sentence.

The court simply reversed.

-34-

48/

similar statements. Thus, the Alabama Court of Criminal Appeals does not

undertake cue “ind of comparative case by case review which Gregg and Proffitt

require as a foundation for constitutionality.

This error is not corrected by the cond case review which is con- |

ducted by the Alabama Supreme Court. That court has issued opinions in 9

death cases. Of those cases, 5 have been affirmed, 3 reversed and one re-

manded for further éaielineiee It has not vacated or reduced a death sen-

tence by any of its decisions. These cases, like those decided by the Court

of Appeals, reflect the court's clear belief that its function is to review |

cases for trial error rather than for proportionality, arbitrariness or

excessiveness of sentence. In its most recent opinion, in Wilson v. State,

77-433 (Ala. S. Ct., April 20, 1979) the Supreme Court describes its review

On original submission, this Court reviewed

the opinion of the Court of Criminal Appeals

and the proceedings in the trial court as

provided for in Rule 39(K) and Rule 45 (A)

Alabama Rules of Appellate Procedure, even

though this cause was argued and submitted

prior to the effective date of those rules.

of cases. |

}

After reviewing the opinion and the proceed-

ings, we do not note any plain error or defect

in the proceedings which has or probably has

adversely affected the substantive rights of

the petitioner.

48/ In one case, Beck v. State, 7 Div. 560 (Ala. Cr. App., April

4, 1978) at p. 38, the court does mention that "The facts in this case, after |

a careful evaluation show a marked similarity with ihose in Jacobs v. State, |

supra". No comparison is made with other death cases or cases in which life

without parole is the sentence. In another case, Thomas v. State, 2 Div. 238 |

(Ala. Cr. App., March 27, 1979), at p. 19, the court remarks, |

",...this court has carefully weighed the aggra-

vating and mitigating circumstances independently.

We are of the opinion that the punishment here

imposed the crime for which appellant has been

found duly guilty."

The court does not compare the sentence in Thomas with other non-

death cases and upholds the sentence even though the court expresses "grave

doubts" that the trial judge correctly found this killing to be heinous,

atrocious and cruel. P. 19, n. 2.

49/ See Appendix E.

=95-

While the plain error review undertaken by the Alabama Supreme Court

is clearlv ulm‘rable, it, like the review of the Court of Criminal Appeals,

is not the type mandated by Gregg and Proffitt.

Without a system of appellate review which permits a court to review

sentences in light of the sentences in similar cases and allows the court to

vacate death sentences which are excessive, arbitrary or disproportionate, no

statutory scheme can be reliable. Even if this court finds that the Alabama

sentencing procedures are constitutional, it should invalidate the Alabama

death penalty law because it fails to provide for the constitutionally-

mandated appellate review.

VII

THE ALABAMA DEATH-PENALTY STATUTES, AS

APPLIED, CONSTITUTE A MANDATORY DEATH-

SENTENCING SCHEME WHICH VIOLATES THE

EIGHTH AMENDMENT'S PROHIBITION OF CRUEL

AND UNUSUAL PUNISHMENT.

It is a point beyond cavil that a statute which is facially con-

stitutional may nonetheless be applied in an unconstitutional fashion, See

Allee v. Medrano, 416 U.S. 802 (1974); Shuttlesworth v. Birmingham, 394 U.S.

147 (1969); Wright v. Georgia, 373 U.S. 284 (1963); Yick Wo v. Hopkins, 118

U.S. 356 (1886). It is also beyond dispute that a capital sentencing scheme

wherein the punishment of death is mandatory upon conviction is unconstitu-

tional. Woodson v. North Carolina, supra.

In Woodson and Roberts, supra, the Supreme Court invalidated two

state death penalty schemes which automatically imposed the death sentence

upon conviction for certain offenses. They did so because mandatory death

penalty schemes fail to provide for "particularized consideration of relevant

aspects of the character and record of each convicted defendant before the

imposition upon him of a death sentence" and “fail to make rationally review-

able the process for imposing the death penalty". Woodson v. North Carolina,

supra at 303.

There is no doubt that the provision of the Alabama statutes re-

quiring that a jury automatically upon conviction "fix the punishment at

death", § 13-11-2(a), is even more mandatory than the statutes condemned in

50/

Woodson and Roberts and would be patently unconstitutional standing alone.

50/ Under the North Carolina and Louisiana schemes, lesser included

offense charges were permitted and a lesser verdict could be returned.

Roberts v. Louisiana, supra at 332.

ate.

However, the Alabama Supreme Court has found that the mandatoriness of the

jury sente~ce i tempered into constitutionality by the fact that the trial

judge reviews the mandatory sentence. Jacobs v. State, supra at 644. A

review of the relevant statistics shows that Alabama trial judges have not

tempered the statute's mandatory nature but rather have consistently acted

as rubber stamps for the standardless jury sentence, thus making the statute

in effect a mandatory one. Maintaining an 86% death sentence rate in Alabama

capital punishment cases, the state obtains a death sentence in virtually

nine out of every ten cases where it seeks oon

It is painfully obvious that the Alabama statute, as it is being

applied, fails to provide the individualized consideration which is a con-

stitutional requirement in imposing a death sentence. Lockett v. Ohio, supra

at 990. Under the statute, 45 applied, there is no real consideration of the

character and iecord of the individual offender and the circumstances of the

particular offense. Woodson v. North Carolina, supra at 304. Rather, trial

judges are simply ratifying the unguidelined mandatory sentences of death

which Alabama juries must return. They are not, 4s the statistics plainly

demonstrate, focusing their attention "on the particularized nature of the

crime and the particularized characteristics of the individual defendant".

Gregg v. Georgia, supra at 206.

Despite the protestations of the Alabama Supreme Court to the

contrary, the Alabama system does not work in a constitutional fashion.

There is no rational review of the judge's mandatory death sentence by Ala-

bama trial judges, with the unconscionable result that the Alabama death

sentencing scheme has, in application, become mandatory. The constitution

will not tolerate such a scheme.

51/ The conviction rate is even more phenomenal. Of the 52 cases

wherein defendants have pleaded not guilty, only two have been acquitted.

This represents a 96% conviction rate.

aSPa

ee ne

VIII

THE TRIAL JUDGE'S CONSIDERATION OF THE

JURY'S DEATH SENTENCE AS ONE OF THE

AGGRAVATING CIRCUMSTANCES WEIGHED IN

HIS FIXING THE PUNISHMENT AT DEATH VIO-

LATED THE EIGHTH AND FOURTEENTH AMEND-

MENTS.

The opinion of the Supreme Court of Alabama affirming the judgment

of the Court of Criminal Appeals contained a dissent by Justice Jones. (App.

B., p. 2, infra.) Said dissent was based not only on the unconstitutionality

of the Alabama death penalty statute, but also on the ground that the trial

Judge improperly considered the jury's death sentence as one of the aggravating

circumstances considered by him in his judgment fixing the punishment at

death.

follows:

The final paragraph of the trial Court's sentencing order reads as

The Court, after considering all the evidence

in the case and the circumstances of the offense,

together with the character and propensity of

the defendant, Clyde Cade, and after weighing

the aggravating and mitigating circumstances

and the punishment of death by the jury, finds

the defendant, Clyde Cade, should be sentenced

to death. (Emphasis added).

In explaining why he construes this as error, Justice Jones states:

Here, the trial Judge forthrightly and candidly

admits that one of the aggravating cir@nmstances

considered by him in his judgment of the death

sentence was, "...and the punishment of death by

the jury...". The apprehension voiced in my

dissent in Jacobs, which I felt was an inherent

and necessary incident in every case, is set out

here in clear, unmistakable language. This sen-

tencing order is susceptible of only one meaning:

The Judge is saying that among those circumstances

considered by him in exercising his discretion in

favor of the sentence of death is the fact that a

jury of twelve persons, in returning a guilty ver-

dict, has already fixed the Defendant's punishment

at death. True, we do not know how much weight

he gave the jury's death sentence; but, surely,

we cannot speculate that, had he given it no con-

sideration, he would have reached the same conclu-

sion. Indeed, it is just as reasonable to assume

that his consideration of the jury's death sentence

tipped the scales in favor of his judgment fixing

the punishment at death.

The majority of this Court in Jacobs said in effect

that it would not assume, ubsent evidence to the

contrary (as I admit I wrongfully did), that the

-38-

trial judges of this State would not honestly

and courageously discharge the duties of their

cffice in objectively weighing the aggravating

and mitigating circumstances of each individual

case uninfluenced by the mandatory jury sentence

of death,

The reason the jury's verdict as to the sentence

cannot constitute any part of the trial judge's

consideration should be obvious. The jury's

function is to determine the defendant's guilt

or innocence of the capital murder charged in

the indictment. For the verdict to go beyond

this and fix the sentence at death as mandated

by the Statute without the exercise of guided

discretion brings the case squarely within the

prohibition of Woodson.5/

If the jury cannot act, under these circumstances,

as the ultimate sentencing authority (which it

clearly cannot), then, surely, its sentence of

death cannot serve as a consideration in guiding

the trial court's search for, and application of,

a nondiscriminatory test for determining who shall

die and who shall live. Under our statutory scheme,

the jury's sentence of death means only that the

jury has returned a verdict of guilty. It would

be ludicrous to suppose that under our Statute

the jury will find guilty only those it feels

should be put to death and discharge as not

guilty all others charged under our Statute.

To make such an assumption is, of itself, an

acknowledgement of our Statute's unconstitutionality

under the test of Gregg and Woodson.

The trial proper, in its unbifurcated context, has

furnished the jury neither adequate data of

aggravation and mitigation nor legal guidelines

for the exercise of its guided discretion -- the

very deficiency contained in Woodson. Moreover,

the jury's discretion under our Statute is not to

convict the defendant of the offense and then de-

cide in a bifurcated sentencing hearing if he lives

or dies; rather, its only choice (other than to

disagree and mistry the case) is to discharge the

defendant as not guilty or to convict him and sen-

tence him to death. Therefore, to allow the trial

judge to consider the jury's verdict of death as

an aggravating circumstance in arriving at his

ultimate judgment of the death penalty is to

commit the same error -- or, more accurately,

to commit the same error compounded.

5/ Woodson v. North Carolina, 428 U.S, 280 (1976).

=39=

CONCLUSION

The several features of the Alabama statute described in the pre-

ceding subsections of this brief do not, of course, function in isolation.

They interact to produce a death-sentencing procedure of uniquely questionable

fairness and reliability.

The Alabama legislature is not to blame in that the current statutory|

52/

scheme was merely a response to Furman. Nevertheless, Alabama's capital

punishment laws violate the Eighth and Fourteenth Amendments. Accordingly,

they must be struck down.

Respectfully submitted,

sor 5 Cogan

G. “STEPHEN WIGGINS

2625 - 8th Street

P. O. Box 1939

Tuscaloosa, Alabama 35403

perme CL

ATTORNEY FOR PETITIONER

52/ The same was true of the Ohio statutory scheme, Lockett, supra,

57 L.Ed. 2d at 986-7, but the Supreme Court found such good intentions

irrelevant to a deteimination of the statute's unconstitutionality.

: 79-5525

NOV 21 1978 a

THE STATE OF ALABAMA --~- JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1978-79

4 Div. 640

Clyde Cade

Vv.

State

Appeal from Dale Circuit Court

HARRIS, PRESIDING JUDGE

The grand jury of Geneva County indicted appellant for

the capital murder of L. D. Sizemore who at the time of his death

was the Sheriff of that county.

The indictment was brought under the provisions of

Section 13-1!-2 - (a), (5), which reads as follows:

"(5) The murder of any police officer, sheriff,

deputy, state trooper or peace officer of any

kind, or prison or jail guard while such prison

or jail guard is on duty or because of some

official or job related act or per: scmance of

Such officer or guard."

Omitting the formal parts the indictment alleges:

"Count 1

“The Grand Jury of said County charge that before

the finding of this Indictment, Clyde Cade, un-

lawfully and with malice aforethought killed L. D.

Sizemore, a sheriff,

to-wit: the Sheriff of Geneva County, Alabama by

shooting him with a gun or pistol,

“Count 2

“The Grand Jury of Geneva County, Alabama further

charge that before che finding of this indictment,

Clyde Cade, unlawfully and with malice afcrethought

killed L. D. Sizemore, a sheriff

to-wit: the sheriff of Geneva County, Alabama,

because of an official or job related act or per-

formance of such officer,

to-wit: the arrest of the said Clyde Cade, by

shooting him with a gun or pistol,

"Count 3

“The Grand Jury of Geneva County, Alabama, further

charge that before the finding of this indictment,

Clyde Cade did murder a sheriff, to-wit: L. D.

Sizemore, the sheriff of Geneva County, Alabama,

because of an official or job related act or per-

formance, to-wit: investigating a complaint involving

the said Clyde Cade, against the peace -and dignity

of the State of Alabama."

Appellant filed a motion for a psychiatric examination,

alleging that he was unable to understand the proceedings against

him and properly assist in his own defense. Following an evidentiary

hearing, the Geneva County Circuit Court granted appellant's

motion, ruling that he be examined at Searcy Hospital “for such

length of time as is necessary to determine the mental condition

of the defendant so far as it respects his criminal rusponsibility

Or competency to stand trial."

In compliance with the court's order, an examination of

appellant was conducted. Off:cials at Searcy Hospital returned

the followii.j report to the court:

"October 21, 1977

“Honorable P. B. McLuuchlin, Jr., Judge

"Circuit Court of Geneva Cevnty, Alabama

“Geneva, Alabama 36340

“RE: CADE, Clyde

Our File #ll 29 45

"Dear Judge McLauchlin:

"We are writing with reference to Clyde Cade

reportedly a 49 year old separated black male

who was admitted to Searcy Hospital for the

first admission September 14, 1977 under your

commitment order dated the 13th day of

September, 1977 with information that he was

ordered committed to the State of Alabama,

Department of Mental Health for such length

of time as necessary tv determine the mental

condition of the defendant so far as it respects

his criminal responsibility or competency to

sti d trial. It was further ordered that the

officials of Searcy Hospital place Clyde Cade

under observation and examination with the

view of determining the mental condition of

the defendant and the existence of any mentai

disease or defect which would affect his present

criminal responsibility or his criminal responsibility

at the time of the commission of the alleged crime.

"Post-admission evaluation, including physical

examination, mental status examination, social

history study, psychological examination, psy-

chiatric evaluation and neurological evaluation,

has been completed and we are submitting the following

report of: our findings.

, "Psychological examination revealed an intellectual

functioning level that falls within the low average

rance. Testing suggested some socio-cultural and

educational deprivation and possible organicity.

Milc deficits were noted in general information,

vocabulary and comprehension. Memory, reasoning

and abstraction were in the average range. Mild

retardation was noted on tasks requiring visual-

motor coordination. Testing for organicity revealed

mild to borderline neurological deficits probably

stemming from a history of trauma to head. Despite

these mild deficits, the examiner reported that the

patient has adequately compensated and his psycholo-

gical functioning is not significantly impaired.

Projective tests were suggestive of hostilicy, emo-

tional lability and acting out tendencies. The

examiner reported there was not much evidence for

thought disorder or psychotic type of thinking dis-

turbance. However, the examiner reported that the

patient does show distrustful attitudes, and per-

secutory ideas and feels victimized. Personality

data revealed a self-centered, passive-aggresive

rebellious individual who epparently failed to learn

socialized behaviors from earlier mistakes. Emot:.on-

ally the examiner doscribed the patient as shallow,

immature and unpredictable. The examiner states

that the patient feels easily slighted and may

react with violence when his adequacy is threaten-

ed. The examiner states that the patient's capacity

for guilt and remorse seems limited and that he is

likely to project blame on others for his problems.

His social judgment and ins‘ght into difficulties’

were thought to be less than adequate. His major

defense mechanisms were denial, projection and acting

out. Overall profile was suggestive of antisocial

personality disorder with superficial passive-aggressive

features. Due to the characterological nature of his

coping, the examiner reported that prognosis is very

guarded,

“Initial psychiatric evaluation revealed speech

to *e fairly low, fairly clear and of moderate

speed. His affect was somewhat theatrical, labile

and very euphoric. No aberrations of thought were

evident although the patient stated that he hears

voices and he said that this scares him and then

he laughed broadly and glanced about the room,

according to the report of the examiner. Reality

contact appeared fairly good. Associations appeared

guite tight and the patient appeared in control

although there was profuse tangential verbal output.

Sensorium appeared clear. Monetary calculations

were fairly slow. Memory in general appeared to be

extremely good as the patient gave explicit details

but these were not corroborated. Proverb inter-

pretations were fairly good. The examiner stated

that it was very difficult to assess his insight

at the time of the initial interview. Judgment

by history was described as poor. Intellectual

capacity appeared average or above although there

was thought to be some socio-cultural deprivation.

Diagnosis was deferred at the time of the initial

evaluation and it was recommended that we refer

the patient for a complete organic work-up.

“Neurological evaluation revealed a normal EEG and

a normal skull x-ray. The neurological consultation

impression revealed little evidence of any type of

memory problem, according to the consultant neurol-

ogist. The consultant also reported that he was very

skeptical that this man has any kind of post con-

cussive syndrome which might account for actions

which he would not remember and/or be responsible

for. He states this is based on the fact that he

does not have a good clinical picture for seizures,

that he is having a spell every day but no seizure

has been observed by the staff, and the fact that his

EEG was so normal as to be called “normal normal"

rather than just plain normal.

"Subsequent psychiatric evaluations were conducted

October 6, 1977 ane October 13, 1977. In the last

evaluation it is reported by the consultant psychi-~

atrist that the eveluating team has not been able

to find any significant physical or organic problems

in this patient and that the patient has shown normal

and ¢onsistent reasoning and judgment. It is further

reported that the patient appears to have fairly good

recent and remote memory of all with adequate tem-

poral sequence and that he also has good social

awareness demonstrated here. A diagnosis of Anti-

social personality with superficial passive-aggres-

Sive features has been made.

“Considering the above mentioned evaluation procedures,

it was the opinion of the consultant psychiatrist in

collaboration with the treatment team that Clyde ‘ade

is sune, is mentally competent to stand trial, knows

the difference between right and wrong and is able

to cooperate and communicate with counsel in his

defense. Therefore, he should be remanded to the

legal authorities for furthcr disposition of his pending

charge.

"Our evaluation being complete, we are requesting

that appropriate orders be issued to remand Clyde

Cade to the custody of the Geneva County Sheriff's

Department.

"With regard to Mr. Cade's criminal responsibility

at he time of the commission of the alleged crime,

we cannot make any definitive statement as this

report reflects our evaluation from the time he

was admitted to this hospital.

“Yours very truly,

"THE SEARCY HOSPITAL

/s/ Kay McLeod, \CSW

(Miss) Kay McLeod, ACSW

Director of Unit Administration

“APPROVAL: /s/ Jaime E. Condom, M.D.

Jaime E. Condom, M.D., Superintendent

“/Schwarzauer

"ce: Sheriff, Geneva County, Alabama

Geneva, Alabama"

On the basi. of this report, observation and conclusions

the trial judge ruled him competent to stand trial.

Appellant next filed a motion to quash the indictment on

the ground that the grand jury was illegally drawn through a

method intentionally excluding persons on account of race, sex,

or income. Accompanying this motion were requests that the jury

venire be quashed and that the jury rolls be produced for examina-

tion. These motions were subsequently withdrawn.

Appellant also filed a demurrer to the indictment and

a further motion to Quash the Indictment. These motions are

set out below.

“DEMURRER TO INDICTMENT

"Comes now the defendant and demurs to the indictment

heretofore returned him in this cause, and as grounds

for said demurrer sets out and assigns the following,

separately and severally:

“1. No facts are averred in Count 3 of the indict-

ment as to how and by what means the alleged murder

was done.

“2. No facts are averred to show that the alleged

conduct of the defendant was unlawful.

"3. No facts are averred in Count 3 of the indict-

ment to show that the alleged conduct of the defendant

was unlawful.

"4. No facts are averred to show that the allegec

conduct of the defendant was done with malice

aforethought.

>. No facts are averred in Count 3 of the in-

di ccumot to show that the alleged conduct of the

defendant was done with malice aforethought.

"6. No facts are averred to show that the official

or job related act or performance was an official

or job related act of the offices allegedly

murdered.

"7. No facts are averred in Count 3 of the

indictment to show that one official or job related

act or performance was an official or job related

act of the offices allegedly murdered.

"8. The indictment does not state an offense.

"9. Count 3 of indictment does not state an offense.

"10. The averments of the indictment are unclear,

uncertain, and indefinite.

"11. The averments in Count 3 of the indictment are

unclear, uncertain, and indefinite.

"12. The indictment does not apprise the defendant

ot the charge against him,

"13. Count 3 of the indictment does not apprise the

defendant of the charge against him.

“14. The time of the alleged offense is not averred

in the indictment.

"15. The time of the alleged occurrence on which the

charge made in the indictment is based is not alleged

in the indictment.

"16. The place of the alleged offense is not

averced in the indictment.

“17. The defendant is not sufficiently apprised

of the charce against him to enable him to defend

against it.

"18. “The indictment is unconstitutionally vague.

"19. The indictment does not state facts in such

a manner as to enable a person of common understanding

to know what is intended.

"20. The indictment does not charge an offense in

the words of any penal statute.

"21. The averments of the indictment are not suffi-

cien:ly definite to inform the defendant of what he

should be prepared to defend against him,

"22, The averments in Count 3 of the indictment cre

not sufficiently definite to inform the defendant

of what he siould be prepared to ucfend against.

"23. The indictment does not identify the offense

charge.

"24. The indictment in Count 3 does not identify the

offense charge.

"25. ‘The indictment is not sufficiently definite

anu Clear enough to enable the Court to pronounce

judgement and pass sentence,

"26. The indictment does not meet the constitutional

tests of clarity and definiteness.

"27. The indictmnt is not sufficiently specific

in its averments to enable the defendant to prepare

his aefense.

"28. The indictment is not sufficiently ‘specific

in its averments to foreclose the possibility of the

defendant being placed in jeopardy for the same

offense.

"29, The indictment is not sufficiently specific

as to protect the defendant from being again charged

and placed in jeopardy for the same offense.

"30. The indictment does not contain sufficient

information to enable the defendant to reasonably

understand the nature of the offense.

"31. The indictment does not sufficiently inform

the defendant of the nature of the charge against

him.

"32. The indictment does not set out the elements

of any criminal offense.

"33. The indictment in Count 3 does not set out the

elements of any criminal offense.

"34. The indictm:nt does not set out the elements

of the offense charced against the defendant.

"35. The indictment in Count 3 does not set out the

elements of the offense charged against the defendant.

"36. The indictment is null and void because the

stutute upon which Counts 2 and 3 are based is

unconstitutional under the Alabama and United

States Constitution, specifically the Eighth

Amendment and the due process, equal protection

and privileges and immunities clauses of the

Fourteenth Amendment to the United States Con-

stitution, and Sections 6, 7 and 15 of the Alabama

Constitution of 1901."

+ * 7

“MOTION TO QUASH INDICTMENT

"The defendant above named, by and through his

attorney, Myron H. Thompson, moved to quash the

indictment on the grounds that:

"1. The statute (specifically Title 15, Section

342(3), et seq., Code of Alabama 1940, Recompiled

1958) upon which Counts 2 ard 3 of the indictment

are based, is in derogation and violation of the

8tli and 14th Amendments to the United States Con-

stitution and Sections 6, 7 and 15 of the Alabama

Constitution of 1901, for the following reasons:

"(a) The provisions of the statute inflict

crue] and unusual punishment upon the defendant.

"(b) The provisions require a mandatory imposition

of the death penalty by the jury.

A- 1-

“(c) The provisions do not provide an

Op. tLu.ity for the jury to consider aggra-

vating and mitigating circumstances.

“(d) The provisions do not provide the jury

with an opportunity to participate in the

penoiogical phase of the criminal proceeding.

"(e) The provisions do not provide for a

comparative appellate review of death sentences

to insure that such punishment is not grossly

disproportionate to the crime.

“(f) The death penalty is not a deterrent to

the homicide allegedly committed by defendant,

particularly becuase the mental incompetency

of the defendant deprives him of the ability

to conform his conduct te the requirements

of the law.

“(q) Because the defendant is mentally deficient

and cannot conform his actions to the requirements

of the law, the death penalty as applied to him is

so totally without penological justification,

in that it results =n the gratuitous inflection

of suffering.

"(h) The statute as applied results in the

Aiscriminatory and arbitrary application of the

- death penalty."

Following the filing of these motions, appellant re-

quested a change of venue, which was granted. The case was

transferred to Lule County, Alabama.

Appellant then filed additional grounds for a demurrer

to the indictment. They are set out below,

“ADDITIONAL GROUNDS OF DEMURRER TO INDICTMENT

“Comes now the Defendant and for ad litional

grounds of demurrer to the indictment in this

cause sets out and ass.gns the following,

separately and severally:

"37, The indictment in Count I attempts to charge

the Defendant with first degree murder, for which

he could not be sentenced to death or to life

imprisonment without parole, and in which lesser

offenses could be included, and the indictment in

Counts II and III thereof attempts to charge the

Defendant under Chapter II of the Code of Alabama,

1975, with offenses for which death or life imprison-

ment without parole could be the only sentences,

and which would not include any lesser offenses.

I and

"38. The offense charged, or attempted to be charged

in Count I of the indictment, and the offenses charged,

or ~ttempted to be charged in Counts II and III of

tne indictment cannot be included in the same

indictment.

"39. The indictment doe* not aver any aggravating

circumstances as requireu by Section 13-11-2, Code

of Alabama, 1975.

"40. Count III of the indictment does not charge

the Defendant with murder in the first degree

under circumstances as set forth in Section 13-11-2(12),

Code of Alabama, 1975.

"41. Count II of the indictment does not charge che

Defendant with murder as required by Section 13-11-2

(5), Code of Alabama, 1975.

"42. The indictment does not charge the Defendant

with any of the offenses enumerated in Section 13-11-2,

Code otf Alabama, 1975.

"43. The indictment is so vague and ambiguous that

the Defendant is unable to determine whether he is

charged with an offense for which the death penalty

or life imprisonment wicnout parole could be

inflicted, or some lesser crime."

The trial judge sustained the demurrer as to Counts

It! and overruled the demurrer to Count II of the

indictment. A, pellant's motion to quash the indictment was

uonied,.

Additionally, appellant's request to be examined by a

Y PI 1

psychiatrist of his choosing at state expense, which was included

in his motion for psychiatric exemination, was denied.

Finally, appellant filed an additional motion to cuash

the indictment and an additional demurrer, both identically

worded.

The text of the motions in substance is set oi. below.

"1. The indictment as returned by the Grand Jury

contains a misjoinder ot offenses.

"2. The indictment as returned by the Grand Jury

is dup] icitous.

"3. The indictment as returned by the Grand Ju:y

contains a misjoinder of offenses, in that Count

I is for first degree murder, and Counts II and III

ato for offenses for which the Defendant can be

selutenced to death.

"4. The action of the trial court in sustaining

the Defendant's demtrrer to Counts I and III of the

indictment and overruling Defendant's demurrer as

te unt Il results in an a.vitrary and capricious

Sc.cection of an offense for which the Defendant

could be sentenced to death, when the Grand Jury

had also included in the indictment a Count in

first degree murder for which the Defendant could

not be sentenced to death.

pate>

indictment containing both

moouer and a Count setting

which the Defendant can be

of a Sheriff because of an

act or performance of such

delegation of authority to

The action of the Grand Jury in returning an

a Count in first degree

forth an offense for

sentenced to death (murder

official or job related

Sheriff) results ina

the trial judge or to

the District Attorney to iake a selection as to

which Count the Defendant will be tried under,

contrary to law and the Defendant's constitutional

rights.

ng,

Yhe Grand Jury cannot delegate its authority

decide whether tne Defendant will be tried for

otfense for whica he could be sentenced to death

Or tor an offense for which he could not be sentenced

to death.

"7. The actions of the trial court result in an

arbitrary and capricious decision that Defendant

will be tried for an offense for which he can be

sentenced to death when the Grand Jury also charged

he Defendant with an offense for which he could not

be sentenced to death.

"8. The inclusion of a Count of first degree murder

and a Count of murder of a Sheriff because of an

of: cial or job related act or performance of such

Sheriff in the same indictment is contrary to the

Alabama Death Penalty Statute and to the constitutional

rights of the Defendant.

"9, The inclu.ion of a Count in fi.st deqree murder

and a Count of murder of a Sheriff because of an

official or job related act or performance of such

Sheriff in the same indictment is contrary to the

Spirit of the Alabama Death Penalty Statute and the

constitutional rights of the Defendant."

The Court's order on these motions is set out below.

"Comes the cefendant, Clyde Cade, in his own

proper person and through his attorney and files

an additione] demurrer to the indictment and an

additional motion to quash the indictwent and the

demurrer anc motion to quash having been submitted

to the Court and the Court having considered the

Same and ea ground thereof, the Court finds as

follows:

"I. That tke Grand Jury of Geneva County preferred

a hree court indictment against the defendant

wiuich alleged the following:

"(a) Count TIT. Clyde Cade unlawtully and

with malice aforethought killed L. D. Sizemore,

a sheriff, to wit: the Sheriff of Geneva County

Alabama, by shooting him with a pistol.

"(b) Count II. Clyde Cade unlawfully and with

Malice aforethought killed L. D. Sizemore, a

Sheriff, to wit: the Sheriff of Geneva County,

Alabama, because of an official or job related

aet or perfe rmance of such officer, to wit:

the arrest cf Clyde Cade, by shoo. tng him with

a pistol.

A-\0-

"“(c) Count TIT. That Clyde Vvade did murder a

steri.f, to wit: L. D. Sizemore, the Sheriff

of Geneva County, Alabama, because of an official

or job related act or performance, to wit: in-

vestigating a complaint involving the said Clyde

Cade.

"2. That Title 13-11-2, Code of Alabama,. (1975)

States as follows:

"“(a) If the jury finds the defendant guilty, it

shall fix the punishment at death when the

defendant is charged by indictment with any of

the following offenses and with aggravation,

which must also be averred in the indictment

and which offenses so charged with said aggra-

vation shall not include any lesser offenses.

"(5) the murder of any police officer, sheriff,

deputy, state trooper, or peace officer of any

kind, or prison or jail guard while such prison

Or jail guard is on duty or because of some

official or job related act or performance of

such officer or guard.

"3. That on September 7, 1977, the defendant filed

demurrers to the indictment and that the demurrers

were sustained as-to Count I an! III of the

indictment; that tue demurrers were overruled as

to Count IL of the indictment and the defendant

waS arraigned and put to trial on Count II of the

indictment. :

"4 That the allegations set out in Count I

characterized the aygravating circumstances as

follows: killed L. D. Sizemore, a sheriff, to wit:

the Sheriff of Geneva County, Alabama; that this

language substantially followed the language of

Title 13-11-2 (a), (5) of the above statute; that

if the statute is broken down in sections according

to the placing of the word 'or', the statute would

read as follows: the murder of any sheriff,

ee ae ee ee a Ge ee er ey a ea

a prison or jail guard while such prison or

jail guard is on duty; the murder of any sheriff,

+ + « « , prison or jail guard because of some

official or job related act or performance of

Such officer or guard. This Court was of the

Opinion that in order to sufficiently express

the aggravating circum.tances in the indictment

the Grand Jury not only had to allege that

the deceased was a sheriff, but that he was on

duty and murdered because of a job related act

Or performance. Therefore, the demurrer was

sustained as to Count I in that it did not

sufficiently state or express the aggravating

circumstances even though if the statute is read

as set out above the circumstances would be

sufficiently alleged. In other words, the Court

read the first section of the clause (5) with

the last section of clause (5) and found that

both had to be expressly averred before the

aggravating circumstances were sufficiently set

Out,

"5S. That the Court sustained the demurrer to

Count III on the grounds that it failed to set

Ouc any means by which L. D. Sizemore was killed,

that is by shooting him with a gun or pistol and

that the Court was of the opinion that the

essential common law of elements cf first or

second degree murder should be alleged rather

than merely using the wo: | 'murder'.

"6. The Court overruled the demurrer as to

Count II and the defendant was arraigned on

Count II and proceeded to trial on Count II of

the indictment.

"7. That Count II of the indictment sufficiently

alleges an offense and the aggravating circumstances

as set out in Title 13-11-2, Code of Alabama (1975)

and that said offense so charged with aggravation

did not include any lesser included offenses.

"8. There is no question, in this Court's opinion,

that in all three counts, the Grand Jury attempted

to charge the defendant with the offenses and with

aqgravation as set out in Title 13-11-2, Code of

Alabama, (1975) and the fact that certain counts

of the indictment failed to so allege such offenses

does not render the entire indictment demurrable

and subject to motion to quash when one count of

the indictment is sufficient to apprise the defendant

of what he is charged with.

"9. This Court further finds that the Alabama Death

Peralty Statute does not pioiibit a multi-count

indictment where in fi.st deqree murder and first

deyree murder for which the defendant can be sentenced

to death are joined in separate counts in the same

indictment. The requirement is that defendant must be

charged in the indictment with one of enumerated

otfenses and with aggravation; the aggravation must

be averred in the indictment; and the offense so

charged with aggravation shall not include any lesser

oftenses. The offense as set out in Count II did

nk include any lesser offenses and did apprise the

detendant of what he was charged with and the punish-

ment therefor.

"10. That if Count I is considered as a count

allieying first deyree murder without any attempt

to alleye aggravating circumstances and it is joined

with a count setting forth an offense with which

the defendant could be sentenced to death, this

in itself does not make the action of the Grand Jury

contrary to the law of Alabama or repugnant to the

Constitution of the United States. In Gregg v.

Georgia, 428 U.S. 153, 49 L.Ed.2d 859, 96 S.Ct. 2909,

the Supreme Court held that opportunity for dis-

cretionary actionsthat are inherent in the processing

ot a murder case does not render the statute or the

procedure unconstitutional. The fact that the state

prosecutor has unfettered authority to select the

person with whom he wishes to prosecute for a capital

otfense and to plea bargain or that the jury may

convict the defendant of a lesser included offense

does not. render the procedure or the statute

unconstitutional,

A-12-

"Thorefore, it is ORDERED AND ADJUDGED that the

ade. tional demurrers to the indictment are over

ruled and the additional mction to quash is

denied.

“This the 13 day of March, i978,"

At arraignment, in the piesence of appointed counsel,

appellant entered pleas of not guilty and not guilty by reason

of insanity to the charge against him. The trial court ordered

that appellant be provided a copy of the List of names of the

persons constituting the venire for trial and that he be supplied

a copy of the indictment.

The jury found appellant guilty and fixed his punishment

at death. The trial court conducted a sentencing hearing follow-

ing the trial and adjudged appellant guilty, sentencing appel-

lant to death. A summary of the evidence at trial, the evidentiary

sentencing hearing, and the trial judge's written findings follow-

ing that hearing are set out below.

Cc. L. Rayburn testified that he was a Toxicologist IIT

for the Department of Toxicology in the area of death investi-

gation. Wis employment begain in 1962 and since that time

Rayburn participated in over 2,00u autopsies. Educational quali-

Auburn Univecsity, in chemistry and bio-chemistry, a Master's

degree in Toxicology with a minor in pharmacology, and medicinal

studies in requirement for a Ph.D. Rayburn did not specify

the area in which the Ph.D. was to be earned.

On the night of August 3, 1977, Rayburn received .

call to come to Geneva, Alabama. We arrived there av 1:00 a.m,

the morning of August 4. At that time Rayburn performed an

autopsy on the body of L. D. "Red" Sizemore at the Pittman

Funeral llome in Geneva.

Rayburn's examination of Sizemore's body revealed

five or possibly six gunshdt wounds. Testimony c ucerning the

recovery of projectiles and their path through Sizemore's

body is set out below.

- « « « Ll removed from the body four projectiles,

or wul'ets, and portions of a fifth. I found a

projectile entered on the left side of the face

in front of the left ear. This projectile, or

bullet, passed Jownward and toward the rear. It

went beneath the cranial cavity beneath the brain,

and struck the first neck vertebra; or neckbone.

At that location it severed the spinal cord, then

passed rearward into the soft tissues - - muscle

tissues into the back of the neck, from whence I

recovered it. I found another projectile entered

on the left-front of the face through the lower

jaw; Or mandible. it passed in an upward direction

going through the teeth and the left-front of the

face, also extracting some of the teeth on the

upper jaw, and then exited through the upper Lip,

making a laceration below the nose. The projectile

then entered the nose on the right side, and exited

the nose. In that case, I got small portions of

metal; or portions of the projectile both from the

bone on the left side of the jaw, and also from

around the upper lip, in the jaw area. I also found

a vrojectile entered below the mandible below the

lower jaw on the left side, more to the rear, away

from the front, and posterior to the one I just

described. It passed through the soft tissues

beneath the jaw. It passed through the tongue,

then also it struck some of the teeth on the

right side; upper portion of the jaw, then entered

the right cheek bone from whence the projectile

was recovered in the right cheek area. I also found

a projectile entered on the left side of the neck

just above the shoulder area. It passed through the

soft tissues of the neck, and entered on the right-

bottom portion of the brain. It passed through the

portion of the brain in an upward direction toward

the right top of the head, frontal area, where I

noted a raised and red contused looking area on

eternal examination. The orojectile siruck the

t ae inside, protruded the bone outward, and then

ricocheted toward the top middle of the brain,

from whence the projectile was recovered. I also

found a projectile entered th: left shoulder; upper

portion of the left arm on the outside area. The

projectile passed through the soft tissue of the bone - -

I mean the arm on front of the bone, it exited in front

of the left armpit ¢rea, then reentered the left

chest in this left ¢rmpit, or axilla area. It

passed through the soft tissues of the left chest,

struck the left 4th rib; where it fractured the rib,

the bullet then continued through the soft tissues

beneath the skin ane external to the rib cage, and

the sternum or breast bone, to the right-front of

the neck, where on external examination there was

a red and bruised or contused and swollen area.

Examination revealed a projectile to be located in

that area, and from that area it was recovered.

In addition, either a sixth projectile, or one of

the five which T just described, struck two fingers

of the left hand. It passed on the back of the

second knuckle, the left index finger which reflected

an is ,ary. It also went in and out of the second

knuckle of the left middle finger. I believe, sir,

that consisted of the wounds I found on the body

both on dissection aid external examination.”

In Royburna'ts opinion Sizemore dted trom a massive central

nervous. syscem teauma to the orain, Spinal cord and hemorrhage

associated with the gunshot wounds te the body. The projectiles

removec from Sizemore's body were given by Rayburn to criminalist

John McDuffy.

John McDuffy testified that he was a criminalist with

the Alabama Department of Toxicology and Criminal Investigation.

McDuffy's qualifications included a Bachelor of Science degree

in chenistry from Emory University and a Ph.D. in chemistry

from Auburn University. Additionally, McDuffy trained at the

Alabama Departinent of Toxicology and Criminal Investigation under

the direction of Chief Toxicologist Dr. C. J. Rehling and

Cafl Rayburn, Assistant Director.

During the early morning hours of August 4, 1977,

McDuffy received some projectiles from Rayburn. Subsequently,

he received a pistol, containing six spent cartridges, from

Criminalist Dale Carter. Ballistics tests run on this weapon

determined that two projectiles recovered from Sizemore's

head and neck were fired from this weapon. Other projectiles

were tco mutilated for comparison to test-fired projectiles.

A projectile Subsequently received from Dale Carter was also

determined to have been fired from the weapon McDuffy tested.

Swabs taken from a subject's ands revealed the presence of

lead, Sarium, and ammonia, * indicating that a weapon had

been discharged or handled recently by that person.

Mcbuffy testified further that the projectiles re-

covered from Sheriff Sizemore's body were taken in his presence

At the funcral home,

Dianne Butts testified that she saw appellant at Fer

house on August 3. With her were her children and her nieces

and nephews. Appellant opened the door to the house and asked

where Dianne's sister, Shirley, was. Ms. Butts told appellant

that he could not come is because Shirley was not at home. When

told this, appellant replied, “I'm goin, t kill her," opened a

pockethiite, and was pushed outside the door by Ms. Butts.

Appellant then began pulling on a window Screen outside, Ms ,

Butts threw 4 drunk bottle through the window, Shattering the

glass and Striking appellant.

Ms. Butts' sister then returned, Appellant, holding

a "piece of board", said he Was going to knock out the wind-

Shield of the car if Shirley did not get out of it. Ms Butts

told her sister to yv get the police and Shirley left the scene,

returning Shorily thereafter,

A short time later Sheriff Sizemore drove up and talked

with Ms. Butts Following this conversation, the Sheriff called

to appellant. Prom the record:

i omer 3 fo | Fight. He Called Clyde out of the house.

How did he do that?

"A. He just Said, ‘Come here, Clyde', and Clyde

come on out Saying, 'I ain't going nowhere. I

ain't going to jail, I ain't gOing to jail.' And

Clyde was leaning against the police Car, with his

hands on the hood just like that there (witness

indicating), and Sizemore Said, 'Turn around and

let me search you', and Clyde Said, ‘Ir ain't

going to jail, I ain't ging to jail', so he did

just like that there, and Started searching Clyde,

and went in his pockets and Stuff, and after he

got through, he Said, "Clyde, you're under arrest,’

and Clyde Said, "yx ain't GOing to jail.’ fle

Searched him and opened the car door, ana about

that time, Clyde grabbed him around the Waist

i they fell. phe next thing I know, Clyde

had came up with the gun, and he had - - he told him

to leave, and Sizemore throwed up his hands and Said,

"Okay, I give up." He got in the car ana about that

time, the next thing I know, there waS some shots,

"O° Al? right. Who Said they "give up'?

4. Sizemore Say he give up.

"OQ. And he yot in the car?

“Se Yeah,

"Q. And then you heard the shots?

of Yes, si:-.

"QO. Dia yOu see whe had the gun?

fe Yeah, Clyde had the gun."

A -16-

“A — 17 was not filed with the Court. This entire

opinion, however, may be found at 375 So. 2d 802.”

the house wiicuu Yer sister told her to get out of the car, and

appellant fol.owed her, after a brief struggle out in the yard.

There they remained until Sheriff Sizemore arrived.

Ms. Johnson was standing in the kitchen door when the

appellant went outside in response to Sheriff Sizemore's call.

Ms. Johnson's further testimony substantially corresponded to

that of Diane Butts.

Willie May Key testified that she was the mother of

Dianne butts and Shirley Johnson and that she knew the appellant.

On the diay Sheriff Sizemore was shot, Mrs. Key first saw the

appellant at ked Brockton's store, when her car was towed there.

When her cur was towed home, appellant rode on the hood of it.

Mrs. Key did not see the appellant again until Sheriff Sizemore

drove up. At that time, watching from her kitchen, Mrs. Key

Saw aprellant approach the sheriff at his car and force him to

the jyround. /ppellant rose up with the sheriff's qun and

then Mrs. Key “saw blood and . . . started hollering, so that's

L. C. Yhomas testified that he was a part-time ouxtliary

deputy sheiitf for the Geneva Count. Sheriff's Department. On

August 3, 1977, ‘vhomas received a complaint about appellant

from Siirley Jolinson. As a result of this Thomas rel»yed the

cumplaint to the Sheriff's Office. At some later time Thomas

was intormed that Sheriff Sizemore had been killed by appellant.

Thowas then drove to the Key house, parking behind the Sheriff's

car. Appellant was standing at the car pointing a pistol at

Thomas. When Thomas approached Sheriff Sizemore's car, appel-

lant raw around the back of the Key home. Thomas did not se

appellant again until he was put under arrest.

Mianukie Lindsey testified that he was Chicf Deputy

for the Geneva County Sheriff's Departwent. About ten minu-es

till seven o'clock on the eveniny of August 3, 1977, Lindsey

received a cull to proceed to the Key community. When Lindsey

A -\8-

arrived at the Key home, he recoynized Sheriff Sizemore's

Car parked out tront and L. C. Thomas Standing beside it.

Lindsey approached the car and saw Sheriff Sizemore slumped

Over the front seat,

At this time, Lindsey Jaw appellant Standing by

Dianne Butts' |ome and told him to Stop; that he was under arrest.

Appellant turned around and escaped through some woods in back

of the house. Lindsey next saw appellant when he was brought

out of sis house by other law enforcement officers.

On cross-examination, Lindsey testified that he had

arrested appellant on three occasions in which drinking was

involved. While appellant had not acted normal at ti.ose times,

neither had his conduct been strange. Lindsey was not aware

of any warraiuc issued for appellant's arrest other than the one

for Sheriff Sizewore's murder. At the time of appellant's arrest

for the shooting, appellant was cursing but he said nothing

further after he was put in a police vehicle. After he was put

in jail Lindscy went to see him and was present when his rights

were read to him.

Wade Garrett testified that he was employed by the

Alabama Bureau of Investigation as a Latent fingerprint examiner.

Garrett's qualifications ineluded training in fingerprint classi-

ficatio at the State Police Academy from which he graduated,

five years of Classification «and identification training from

J. B. Jolly, a former State Identification officer, and three

years of advanced training in latent fingerprint work from R. G,.

Whitten, a present identification officer with the Bureau.

On August 4, 1977, Gariett took appellant's fingerprints

and examined an automobile tho t had the Geneva County Sheriff's

emblem on it. At that time Georrett lifted latent prints from the

windows of that car. A print in what appeared to be blood

was lifted frow the inside of the passenger door window, six

inches trom the top and ten inches from the back side of the window.

A-19-

Garrett compared this -rint with a sample taken by him from

appellant and discovered nineteen characteristics common ti the

two prints. In Garrett's opinion the print left on the Sheriff's

car was that of appellant, “and could have been left by no other

finger."

Allea Benefield testified that he was Chicf of the

Ozark Police Department. On the evening of August 3, 1977, Bene-

field received a call to go to the aid of an officer, and proceeded

to Geneva County along with Captain Murray Franks and Lieutenant

John Nucholson. After arriving at the scene of Sheriff

Sizemo:e's death, a young black female led Benefield and three

other officers co appellant's home. These law enforcement

officers surrounded the house and called appellant to come out.

They called hii sevecal times identifying themselves as officers.

When the officers received no reply, but heard movement from the

living room, they entered the house and found appellant lying

down it, a bedroom. A revolver lay underneath his head. After

securirg the weapon, which held six expended cartridges,

Benetacld turned it over to Doputy Jimmy Hand of the Geneva County

Sheriff's Department.

On cross-examination, Benefield testified that appellant

appearcd to be intoxicated, noting that he had to be gotten onto

his feet by officers. Benefield further testified that appellant

was bleeding trom his face at the time he first saw him.

Di. William H,. Rudd. testified that he received «

medical degree from Birmingham Medical School in 1952, interning

in Mobile City Hospital through 1953, when he establisied a general

practice in Jackson, Alabama. In 1970, Rudder undertook a residency

in psychiatry in Birmingham, completing the proycam in 1973.

Subsequently, Rudder was employed at Veterans Hospital in

Tuscaloosa, Bryce Hospital, engaged in private practice and

became a Staff Psychiatrist at Scui.y Hospital, At the time of

his appearance an court, Rudder had been on the “legal Unit"

at Searcy for four years. During his work at Searcy, Rudder

evaluatcd several hundred criminals, including the anpellant.

Appellant was diagnosed as an antisocial personality with

Superficial pessive aggressive features. The definition of

this personality disorder utilized by Rudder follows. From

the record:

" . .« « « I could - - I would like to read what

the book, or what I call the catalogue says

about an anvcisocial personality. I thin} its

detinition of passive aggressive is a little

confusing but I'll read that too if you would

like to hear it, but we just said he was anti-

So al with superficial passive aggressive

feucures, and that's the best short description

we could come up with. 301.7; antisocial

personality, 'The term is reserved for persons

who are basically unsocialized and whose behavior

pattern bringsit}hom repeatedly into conflict

with society. They are incapable of significant

loyalty to individuals, groups, Or social values.

They are grossly selfish, callused, irresponsive - -

irresponsible, impulsive, and unable to feel or learn

from their experience and punishment. Frustration

tolerance is low.' They don't tolerate frustration

very well. ‘They tend to blame others, or offer

pausable rationalization for their behavior. A

mere history of repeated legal or social offenses

is not sufficient to justify this diagnosis.'

Passive aggressive is very short, it is No. 401.81,

it is new to this buok, this book changes every now

and then because we realize it is not totally ade-

quate and we try to improve it. Passive aggressive

personality; 'The behavior pattern is characterized

by both passivity (TI quess everybody knows what

passivity is, it's just inactivity or not being

assertive, or not being aggressive) by both

passivity and aggressiveness. The aggressiveness

May be expressed passively, for example, structionism,

pouting, procrastination, intentional inefficiency,

Or stubborness. This behavior commonly reflects

hostility which the individual feels he dare not

¥ express openly.’ We very frequently do thai to our

parents or someone who is related to us, that we

cannot tell directly what our true feelings are.

‘Often the behavior is one expression of the

patient's resentment in tailing to find gratification

in a relationship with an individual or institution

upon which he is over deperdent.'"

Turther, Dr. Rudder expressed the followina Opinions on

appell. nt's mental condition. From the record:

"OQ. All right. Whit is your diaqnos)s of Mr. Cade?

"A. Antisocial personality.

"O. All right. Does that mean that he's mentally

iJ1?

“A. No. That's a personality disorder.

A-21-

"O. Do you think, based on your observations and

consaltations and all that you have described, that hewas

insane at the time of the commission of the crime,

and at the time that he shot the Sheriff?

"A. In my opinion ne wasn't insane, but T wasn't

there. I don't know what his condition was, and

it's my - - it's our opinion, and we see people all

the time that we feel both ways, you know, and al]

we can do is have an Opinion. It was my opinion,

and it was all of our opinions that he was sane at

the cime.

"A. Right.

"QO. Well, was the board's thinking that he was

under extreme - - was he under the influence of

extrome mental or emotional disturbance at the

tive he committed the crime?

"A, Well, that's a relative thing. 1 get emotionally

disturbed and everybody in the court has been emo-

tionally disturbed, but there is no indication on

everything we could find out; and we found out a

good bit about this man, that he had any more inclina-

tion to pull a triuqer than any other person. There

is no reason to believe that he lacked control or

that he was more impulsive. I would say that he

is not more impulsive, because he - - I don't know

how the courtroom would stack up, but there are pro-

bably some impulsive people in here who would break

a vase or do something like that. There is nothing

in his psychological makeup to indicate that he had

a deqree of impulsivity which would render him unable

to control, or unable to recoqnize the consequences

of his acts.

"O. Now, do you think, in your expert opinion, that

he had the capacity to appreciate the criminality of

his aet, or to conform his conduct to the requirements

Which was substantially impaired?

"A. Would you repeat that?

"QO. All right. Do you think that he had the capecity

to appreciate the criminality of his conduct on the

occasion when he shot the Sheriff, or to conform bis

conduct to requirements of law?

"A. I think he had the capacity. ‘That's my opinion.

"O. All right. Do you think that he was under an

irvesistible urge at tie time that he committed the

crime?

"ay 1 doa't think he was under lrresistible urqe,.

Thac'’sSs my opinion.

. Do you Chinn tha’ te was sane .t the time that

he committcd this aet?

"A. t's my opinion Giat he wae sane,

"0. Do you think that he knew the :ifference between

right and wrong, and that he aopreciatcd the crimi-

nality of the conduct at the time?

A-22-

"A. It's my opinion that he did know the difference

be vweon right and wrong, and could appreciate the

criminality of his conduct.

"Q. In other words, he had the ability to choose

the right from the wrong?

"Ns ea

Dr. V. Kothandapani testified that he was a native of

India and that he obtained a bachelor's degree and master's

degree in psychology in his country. In 1970 Kothandapani 2arned

a Ph.D. degree in psychology at the University of North Carolina

in Chapel Hill. After that time, Kothandapani held positions

at Franklin College in Indiana and iggprivate practice. At

the time of his appearance in court concerning the case at ar,

Kothandapani had worked at Searcy Hospital fur two years,

evaluating persons with criminal charges against them. Including

appellant Kothandapani evaluated approximately two hundred

to two hundred and fifty such persons in those two years.

Dr. Kothandapani performed eleven different evaluation

tests upon appellant. On the basis of his testing and experience,

Dr. Koshandapani formed the following opinion. From the record:

"QO. All right. Based on your tests and experience

and talking with him, do you think he was insune

at’ the time he committed this crime of shooting

the Sheriff?

"A. Now, this is something we - - I have to give

an educated guess, because as you know pretty well,

I was not at the scene of the crime. Even if I

were there, I would never know, because what goes

on in another mav‘s head is really difficult to

assess. But, from the testing data, from the facts,

from the interview I had with the patient, and from \

seeing hundreds of criminals, and also capital

murder cases, I would say that the person acted

violently and that he was aware of the - - he was

aware of what he was doing because of the personality

features. I'm hasing it on the personality featues.

So, if I were tu take au educated quess, if I were

to give an expert opinion on this regard, it would be

that he was not insane at the time this happened - -

this alleged crime happened.

"QO. All right. ‘low, based further on your testing,

do you think he was. under the influence of extreme

mental or emotiona® disturbance at tin time he

committed the crime?

A-23-

"A. Again, this would be in terms of my cducated

gues3, Or expert opinion, that he would have been under

sume emotional distress. Any time you get into a

fight; even a simple street fight, your emotions

are aroused, you become angry, but the extent to

which it qoes, the intense emotion that we are

talking about, does not qualify for what you just

now said. He is not that emotionally disturbed as

to - - as not to know what he was doing.

the criminality of his contact - - conduct, or to

conform to the requirements of law were substantially

impaired at the time he committed this crime?

"A. I don't think it was substantially impaired.

Again, based on the personality data, TIT would say

that it was not the capacity to appreciate the

criminality of the offense - - was not substantially

impaired.

"QO. D> you think he was under an irresistible urce

t.» do that which he did when he committed this crime?

"A. I don't think so.

"O. All right. Now, based on your experience and

knowledge in this field, would you say that Clyde

ade was sane at the time he shot the Sheriff?

"A. In all probability, yes.

"QO. And do you think he knew the difference between

right and wrong at the time that he did that?

"A. In all probability, yes.

"O. And do you think that, even though he did know

right from wrong, that he could have chosen triaht

f ron wrong at the time he committed this crime?

"A. I think so."

Larry D, Baxter te: ified that he was a police lieutenant

in Enterprise, Alabama. On August 3, 1977, Baxter proceedec to

the Key community, arriving there at approximately 7:30 p.m.

Baxter anc other law enforcement officers conducted a search for

appellant and found him in an unpainted wood frame house two or

three-tonths of a mile away from the scene o. Sheriff Sizemore's

death. After surrounding the house, and getting no reply from

appellant when summoning him cut of the house, Baxter entered the

house, findiaug appellant lyine on a bed, a pistol lying under

the left side of his face. Boxter pul appellant under arrest,

reading him his “rights.” Appellant appeared to have been drinking,

9g } i

but he wast “stumbling drunk."

Jimny Hand testitted that te was a drug iavestigqator

for the Ger vu ‘ounty Sheriff's Department. On August 3, 1977,

Hand went to the Key house, érriving there at approximately

7:00 p.m. From there, Hand accompanied Chief Benefield, Baxter,

and otner law enforcement officers to appellant's house. After

, appellant's arrest, Chi: f Berefield gave him a revolver which was

‘ recovered from appellant. Hend testified that he subsequently

gave this weapon to Dale Carter after initialing it. Hand's

testimony concluded the State's case.

Out ot the presence of the jury, appellant moved to

exclude the State's evidence on the ground that a prima facie

case had not been established. Additionally, appellant argued

that the State's evidence failed to show that Sheriff Sizemore

could not have legally arrested the appellant. From the

record:

"MR. HUGHES: Now, the State put in the indict-

ment the allegations that the official act of

the Sheriff was making the arrest of Clyde Cade.

There has been testimony from a Chief Deputy

that there was no warrant fer the arrest; or

none that he knew of, and that he was familiar

with the records. There has been no proof of

anything that woule justify an arrest without

a warrant. L. C. Thomas testified that he simply

called someone, and that the jailor, trustee, or

someone at the jail told him that there was a

disturbance at the Key residence - - or the Key

community. There is no evidence at all about how the

Sheriff got the information. There is no evidenc?2

to indicate that Clyde Cade did anything in the

Sheriff's presence. The rule being, of course,

that to justify an arrest without a warrant for

a misdemeanor, it must be committed in t!

presence of the officer. On the contrary, the

evidence was clear that Clyde Cade was in the house,

and that the Sheriff called him out and told him

that he had to come with him. The girls testified

that he told him that he wus under arrest, but

Clyde had done nothing in his presence. The evidence

is that nothing had been reported to the Sheriff.

Even if we wanted to stretch a point, nothing had

been reported to tlh: Sheriff that would justify

an arrest. We feel, of course, that the indictment

contemplates a lawful arrest, It it was not a

liwful arrest, then the Sheriff was not acting

within the line and scope of his duties as a

Sheriff, in the going up and making of ... unla.-

ful arrest. We feel that even though the girls

huve said that he told him he was under arrest, that

there was no basis for a legal arrest, and that would

have to be contemplated in the indictment, and that

there is a fatal variance in this regard."

The court denied appellant's motion to exclude the

evidence.

Appellant testified that he was either thirty-nine

or forty-nine years of age, and that he had lived in Coffee

Springs as a child. After getting “lost" a few times appellant

was discharged from military service under honorable conditions.

At one time, appellant had been restricted to a military hospital

at Fort Rucker. This occurred after going "AWOL" over some

trouble in Quincy, Florida. From the record:

"QO. What kind of trouble was it?

"A. Well, I got in a misfortune there with a

quy over shooting pool, and some other things

that he said, and messed around and done something

to him. I wound up down in the county prison camp.

"OQ. What did you do to him?

"A. Well, they say 1 messed him up, T don't know

sf I did or not.

"QO. Well, did you beat him up, or did you kill

him, or what did you do?

"A. So they say, 1 don't know.

0. What do they say?

"A. They is some say Tt killed him, some say I beat

him up, IT aon't know if T did or not, you see.

"O. Do you remember anything about it?

"A. Well, my last recalling of it - - the shooting

game at the pool teble, you know - - T used to be

pretty qood at shocting pool. The quy come to me

and he said, ‘Well, you done won all my money. Give

ms some of my money back.’ I said, ‘You qet to the

tuol to win my morey?" He said, "Yeah." Then I

said, ‘Well, it wert a little @ifferent, T won it.'

And he said, ‘You ain't going to give it back to

me?" and T said, ‘Uh-huh.' Then he made the remark

that TIT had took his money and I had took his woman

also. Then he got to describing the womens to me,

you know, - - two womens at the time, that I had been

with that night, ycu know, that he was getting at

me about. So, he aot to calling the names, and this

particular girls tiat he said was Shiiley. Well, I

hisw She was on my car that night.

"0... “Age xu talking about the “Shirley that was

here and testified?

A, “That's edalit.

YW. And this was down in Quincy, Florida?

That's riqht.

"Oo. All right.

A-26-

"A. And se he opened a knife at me, and I kept

pibbing him with that pool stick until T got

him to one of the windows. I kept. jabbing and

he fell out the window. Well, I didn't realize

that we was upstairs, you know, so I went back

to shoot pool,

O. He fell out of the upstairs window?

"A. Yeah, that's right. So all of a sudden,

officers come and arrested - - you know, asked

if we was having a disturbance up there, and every-

body pointed their finger over at me."

Ap, tlant further testified, all on direct examination,

that he had several other prison terms for various "trouble" he

had been involved in. These offenses incluged theft and leaving

the scene of an accident.

O1 the day Sheriff Sizemore was killed, appellant

remembered having sat on David Key's porch. He also remembered

Speaking with L. C, Thomas that morning. There was a disagreement

over money which appellant believed Thomas owed him for some work

he had done.

Appellant also testified that he had been in an auito-

mobile accident. From the record:

"0. About how long aqua? About how long prior to

the time that the Sheriff was killed?

"A. In other: words, € don"t Know, but it was

betore he fired me, IL was before he fired me,

I think,

QO. before he fired you?

"A> Yeah,

"O. Were you hurt in any way in the wreck?

“A. Well, to tell you the truth, I just never could

qt uyself together after that - - that jar or sone-

thing done something to me,

"QO. Well, did you get hit by anything, or did your - -

"A. T ram up again t that truck part there, and

ip that: steering wheel and all, up there in my

face, and hit this other truck.

‘ "QO. Now did the accident happen?

"A. Well, coming around a curve there by Wyley (PHON)

ROud = = a pretty stiff curve, and you can't see

around it no - -

0. Clyde, T don't really mein all the details

ot it, but did you run into another vehicle?

"A. We both run head-on.

“Qs <All right; Now, you say it bumped you

a c..'St some parts of the truck and the steering

wheel, What part of your body hit what part of

the truck or the steering wheel?

"A. Mostly here; it hit me un beside the head

there a little too, and I never was able hardly

to qet back to myself. It upset me some way or

another there,

oO, in what way?

mal: In other words, £ got where 1 would qo in

places and T wouldn't know nothing about it. TIT

would find myself sometimes walking in the rain

down that railroad over thre, and I don't know."

Tn addition to this injury, appellant testified that he

had been in otwuer accidents énd that he had received other head

injuries, nostly during fights, from "folks been bumping (him)

about the head... .” Eveiy merning appellant

This text is long and has been trimmed here. Open the source document for the complete record.

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