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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979

## 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:

12

21

24

26

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). .

ii

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

ry
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,

34

30
12
8,
19
31

24,

10, 12, 1
2
» 52

|

14, 24

25, 26,

19, 21,

335 37s

'
if
'

;
}

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

iv

27, 31

14,

12,
26,
37

31

LF
36

31,
35,

21, 23

28

15

15

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

16

15

15

15

RULES, STATUTES AND CONSTITUTIONAL PROVISIONS

Ala. R. App. Pro., Rule

Ala.

R.

App. Pro., Rule

Ala. R. App. Pro., Rule

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Code

Ohio

of

of

of

of

of

of

of

of

of

of

of

of

of

of

of

of

of

of

of

of

of

of

Rev. Code Ann., § 2929.04(B) (1975

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),

Alabama (1975),
Alabama (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 ... .

vi

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

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>

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.

(c) In such cases, if the jury finds the defendant not guilty, the
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).

ba

-—

§ 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).
S=

§ 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).

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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

4/

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

|
j
(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-

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.

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
8/
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
9/
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.

i

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) 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 |
'
‘
i

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
i

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.
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-
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
ai

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-

V

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 kett mandates a declaration that the Alabama statute violates

the Eighth and Fourteenth Amendments.
vI

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 |
i
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 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
i

} 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

{
i
|
i
|
{
i

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.

1

t

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-

J

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,
to
an

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-
fications 1: «© Rayburn included a Bachelor of Science degree from
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.”

went to L. ©. Thomas’ house and returned. Ms. Johnson went inside
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
5

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2092%3A1. Public record. Not legal advice.