Petition — Watson v. Alabama

NO.

a

90-1793

APR 2¥ 198]

CLERK

eI bee

ALEXANDER wl STEVAS

i

a Se

Darra

* * *

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

* * *

THOMAS RANDALL WATSON,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

* * *

ON WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS OF ALABAMA

* * *

PETITION FOR A WRIT OF CERTIORARI

* * *

Stanley B. Sikes

John W. Kelly, III

P.O. Box 1308

Selma, Alabama 36701

( 205) 872-6207

COUNSEL FOR PETITIONER

FX

QUESTIONS PRESENTED FOR REVIEW

1. Whether the failure of the trial court to note sua

sponte, the obvious inadequacy of petitioner’s legal

representation constituted plain error which was properly

before the Alabama Court of Criminal Appeals on

petitioner’s direct appeal from his judgment of conviction.

2. Whether the failure of the Alabama Court of Criminal

Appeals to note and consider, sua sponte, the obvious

inadequacy of petitioner’s legal representation as plain

error apparent on the record of the trial proceedings

constituted error and denied petitioner his Fourteenth

Amendment right to due process of law.

3. Whether the failure of the Alabama Court of Criminal

Appeals to permit issues going to adequacy of legal

representation to be raised for the first time on appeal

constitutes abridgment of the Sixth Amendment guarantee

of adequate legal assistance and of the Fourteenth

Amendment guarantee of due process of law.

TABLE OF CONTENTS

er nn ne ee gat fe pei ea 1

SN st. os oss we aah wie Lae ae 3

ee inca 'y Sowa eeet oh Oe yo eee 4

Re 55 wap socio oben s 6 Oe a Oe en 7

SER TI EN aol RE ES Cs SEN ER 7

Constitutional Provisions

DO ree Seas i aes das y oo Suck Ouieee are: 8

NO er ee eae ate he g

Cy aes cc gs kkk Boe Ce corp earn 15

II a0 oc 050d S00. oad ee: Co ree eee 22

CE CPONWOOE oc. . 5 cs nbs a eee wes eee 23

3

PRECEDING PAGE WAS BLANK| |

oa TE

TABLE OF AUTHORITIES

CASES:

Boyd v. State, 361 So.2d

7 t t Oe eRe SPEER it 19,20

Cuyler v. Sullivan, 446 U.S.

335, 100 S.Ct. 1708,__L.

MP RDEU RMD, She ee eo ad Mae, 17

Ex parte Oglesby, 337 So.2d

Pe EN GS, eter eh Svan enh ig 10

Geders v. United States, 425

U.S. 80, 96 S.Ct. 1330, 47

SRE Baan da 21 -

Gillihan v. Rodriguez, 551

F.2d 1182 ( 10th Cir.) cert.

den., 434 U.S. 845, 98

S.Ct. 148, 54 L.Ed.2d 111

ROMS ah ei eye oot RL 17

Johnson v. United States,

318 U.S. 189, 63 S.Ct. 549,

be ae Se er a 18

Lakeside v. Oregon, 435 U.S.

333, 98 S.Ct. 1091, 55

me ES NTE ee ks ic re eaten 20,21

McMann v. Richardson, 397

U.S. 559, 90 S.Ct. 1441, 25

PP” MN i ATF RRR She on, 17,21

Murry v. State, 367 So.2d

985 ( Ala.Cr.App. 1978),

cert. den., 367 So.2d 989

eRe RAE OU ea? Ce ARR RE ay ee ety 10

Oates v. State, 375 So.2d

Pe © AMOAN ES ROOD ak Ass es hh Dede a te. 12

Powell v. Alabama, 287 U.S.

45, 53 S.Ct. 55, 77 L.Ed.

PA ELE ss eee oo Wie Miwa cle oe Oh a 17,21

Rickenbacker v. Warden,

550 F.2d 62 ( 2nd Cir.

1976), cert. den., 434 U.S.

826, 98 S.Ct. 1038, 54

IC RMEOGS rice eae foo ge eS 17

Robertson ov. State, 29

Ala.App. 399, 197 So. 73,

cert. den., 240 Ala. 51, 197

ee ee Ue a ee Oe a ee 13

Silber v. United States, 370

U.S. 717, 82 S.Ct. 1287, 8

Ry ERIS acy Rey Sey = anes ee 18

Stone v. Powell, 428 US.

465, 96 S.Ct. 3037, 49

I I nay he Beh 21

United States v. Atkinson,

297 U.S. 157, 56 S.Ct. 391,

ep I ce al ee oe eae 18

United States v. Aulet, 618

ae arene es EE i chek A ean mals 18

United States v. DeCoster,

624 F.2d 196 ( D.C.Cir.

United States v. Kazni, 576

es TB fo, , ccs CR eas ae eee 18

United States v. Ramirez,

535 F.2d 125 ( Ist Cir.

(ER OAREEISS GTS Stn SRG a al 17

United States v. Stephens,

609 F.2d 230 [ 5th Cir.

IRS Sas Se a a 18

Wilder v. State, 52 Ala.App.

aa eee 12

Williams v. State, 342 So.2d

EE a ae 13

MISCELLANEOUS:

MME Oe ce ciae lew... cel. 7

Alabama Rules of Appellate

Procedure 10( f)and10(k)...................... 14

§12-22-240, Code of Ala-

SS 2 a en 14,19

6

***

The petitioner, Thomas Randall Watson, respectfully

prays that a writ of Certiorari issue to review the judgment

and opinion of the Court of Criminal Appeals of the State of

Alabama entered on October 7, 1980.

** *

OPINIONS BELOW

The opinion of the Alabama Court of Criminal Appeals,

not yet reported, appears in the Appendix hereto. The

Supreme Court of the State of Alabama denied certiorari in

the case submitted for review to this Court, noting that the

petitioner had not employed applicable Alabama Rules of

Procedure to present the issue asserted in his petition for

Certiorari and stating that it was compelled to deny his

petition. The opinion of the Alabama Supreme Court, not

yet reported, appears in the Appendix hereto.

JURISDICTION

The judgment of the Alabama Court of Criminal Appeals

was entered on October 7, 1980. Timely application for

rehearing was denied on November 25, 1980. Timely

petition for certiorari to the Alabama Supreme Court was

denied on February 20, 1981, and this petition for

Certiorari was filed within 60 days of that date. This

Court’s jurisdiction is invoked under 28 U.S.C. §1257 ( 3).

mX

*?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution:

Amendment VI

In all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury of

the state and district wherein the crime shall have been

committed, which district shall have been previously

ascertained by law, and to be informed of the nature and

cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the assistance

of counsel for his defense.

Amendment XIV

Section 1.

All persons born or naturalized in the United States, and

subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

state shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States;

nor shall any state deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

STATEMENT OF THE CASE

The Petitioner seeks review of a judgment convicting

him for perjury and sentencing him to imprisonment for

three years.

The petitioner was tried under an indictment alleging

that petitioner had falsely sworn under oath during the

taking of an oral deposition in a civil slander suit that

petitioner had not had a telephone conversation with one

M.M. Kennedy, Jr. on July 21, 1978, wherein certain .

statements were allegedly made by petitioner. ( App. 31)

At trial and on appeal, the petitioner was represented by

retained counsel.

During the course of the trial, the State called three

witnesses. Mr. M.M. Kennedy, Jr., the chief State’s

witness, testified as to his recollection of a telephone

conversation with the petitioner on July 21, 1978, and of

the statements allegedly made during that conversation.

Mr. Kennedy testified that a State agent was present with

Kennedy during the alleged telephone conversation and

made a tape recording of the conversation. ( App. 32)

The State agent present with Mr. Kennedy during the

telephone conversation was Mr. H.E. Mitchell, a Sergeant

in the Alabama Department of Public Safety. Sergeant

Mitchell, the second witness called by the State, testified

that he had tape recorded the conversation in question, and

that it contained the voices of Kennedy, the petitioner, and

another participant. ( App. 33) At the conclusion of

Sergeant Mitchell’s testimony on direct examination, the

State offered the tape into evidence whereupon the

petitioner’s counsel objected and asked to examine

Sergeant Mitchell on voir dire outside of the presence of the

jury.

On voir dire examination by petitioner’s counsel,

Sergeant Mitchell admitted that he could not identify the

voices on the tape recording through his own independent

knowledge, and that his identification of the voices was

based on hearsay. ( App. 34) The petitioner’s trial counsel

made no motion to exclude Sergeant Mitchell’s testimony

identifying the voices. During Sergeant Mitchell’s_

9

-

cross-examination in the presence of the jury, petitioner’s

counsel again failed to make any motion to exclude

Sergeant Mitchell’s testimony and proffered no questions

to Sergeant Mitchell concerning his voice identification.

The tape recording of the conversation was subsequently

admitted into evidence by the trial court. ( App. 34 )

The tape recording of the telephone conversation was

played for the jury and, during the playing of the tape

recorded conversation, each juror was given a copy of a

transcript of the conversation to read while listening to the

tape recording. ( App. 37) Although the trial judge had

ruled that the transcription of the tape constituted hearsay

of the “rankest kind” ( App. 36), petitioner’s coursel

made no objection to the jury beiug furnished with a copy

of the transcription, and stipulated that the transcript of

the tape recording could be furnished to each member of

the jury without the necessity of any further proof as to its

correctness. ( App. 36&37) The transcript identified the

speakers by name. The tape recording and transcription

thereof were the only evidence corroborating the testimony

of Mr. M.M. Kennedy, Jr. as required by Alabama law. |

Subsequent to the alleged July 21st telephone

conversation, the petitioner had filed a civil slander suit

against M.M. Kennedy, Jr. ( App. 32 ). During the course

of the civil proceedings, the petitioner’s oral deposition was

taken before Ms. Betty J. Maurer, a shorthand reporter

authorized under law to administer oaths. Ms. Maurer, the

final State’s witness, testified that she had placed the

petitioner under oath and taken the petitioner’s deposition

on November 2, 1978, and that she had prepared a

transcription of the deposition. ( App. 35) Ms. Maurer

identified and read the questions and answers in the

petitioner’s deposition which formed the basis of the

indictment. At the conclusion of Mrs. Maurer’s testimony,

the State rested.

1Ex parte Oglesby, 337 So.2d 381 ( Ala. 1976) and Murry v. State.

367 So.2d 985 ( Ala.Cr.App. 1978), cert. den., 957 So.2d 989 ( Ala. 1979),

hold that a conviction of perjury must be sustained by the testimony of

two witnesses to the corpus delicti or one witness with strong

corroborative evidence.

10

’%

Petitioner’s counsel briefly recalled Mr. M.M. Kennedy,

Jr., as the only defense witness. Immediately upon the

conclusion of Mr. Kennedy’s testimony, petitioner’s

counsel rested his case, and the court instructed the parties

to proceed with closing argument to the jury. ( App. 37 )

During his closing argument the petitioner’s counsel

apologized to the jury, to petitioner, and to co-counsel for

his “snap decision” in resting petitioner’s case and in

failing to confer with petitioner and with co-counsel,

stating as follows:

‘“( Petitioner’s Counsel): .. . I hope you won’t hold any

mistakes that I have made or Mr. Melson ( Co-counsel)

has made against Randall ( Petitioner). I would like to

apologize to Mr. Melson and Randall also for my snap

decision that I made in resting our case. I should have

conferred with them but I...

( State’s Counsel) We object. That has absolutely .. .

THE COURT: I will sustain the objection. Mr. Hardin,

that’s not permissible argument.’’ ( App. 37 ).

After the foregoing exchange the State’s counsel offered

to allow the petitioner to reopen his case, at which time

petitioner’s counsel objected and asked for a mistrial,

which was denied. ( App. 37)

The trial jury began deliberations on the morning of

June 8, 1979, and on the afternoon of June 8, 1979, advised

the trial court that they were deadlocked. ( App. 38 ) The

trial court charged the jury of their duty to agree on a

verdict and the jury continued its deliberations until 6:15

o'clock p.m. on June 8, 1979. Thejury returned at 8:00 a.m.

the following day and resumed deliberations. Finally, the

trial jury reached a guilty verdict on the afternoon of June

9, 1979. ( App. 41)

Petitioner’s trial counsel filed a motion for a new trial on

July 18, 1979, alleging, in grounds 56 and 57, that members

of the petit jury panel had failed to respond to voir dire

11

\

L a.

sre

questions asked during jury selection,” and that certain

members of the jury made improper statements during

deliberations. ( App. 25) Petitioner’s trial counsel also

filed a motion for leave to subpoena the petit jurors

alleging that one juror had stated, during deliberations,

that he had known the petitioner all of his life and that the

petitioner had always been in trouble with the law, and

alleging that the improper response of this juror during

voir dire examination had denied the petitioner his

Constitutional right to trial by fair and impartial jury.

( App. 27) Petitioner’s counsel later amended his motion

for leave to subpoena jurors alleging further juror

improprieties. ( App. 28) All post trial motions were

denied by the trial court. ( App. 17)

Petitioner’s trial counsel participated in petitioner’s

direct appeal to the Alabama Court of Criminal Appeals. In

his appeal the petitioner argued, inter alia, that his

conviction was due to be reversed because it was based on

the uncorroborated testimony of the State’s witness, M.M.

Kennedy, Jr. The Court of Criminal Appeals held that Mr.

Kennedy’s testimony was corroborated by the tape

recording of the alleged conversation with the petitioner,

and noted that petitioner: ( 1) had made no motion to

exclude Sergeant Mitchell’s testimony identifying the

voices; ( 2) haa proffered no questions concerning Sergeant

Mitchell’s voice identification during cross-examination in

the presence of the jury; and, (3) concluded that

petitioner’s counsel had not preserved error by his failure

to make timely and appropriate objections or to move to

exclude the witness’s testimony.® ( App. 6 )

2These questions, which are set out in the appendix hereto ( at p.

30 ), pertained to the jurors’ knowledge of the petitioner and whether

they held any opinion of petitioner which might bias their verdict.

Hearsay testimony admitted without objection becomes lawful

evidence. Wilder v. State, 52 Ala.App. 157, 290 So.2d 225 ( 1974). Where

cross-examination deve’»ps that the witness's testimony on direct

examination is based on hearsay, the defendant's remedy is to move to

exclude the evidence from the jury. Oates v. State. “75 So.2d 1285

( Ala.Cr.App. 1979).

12

The Court of Criminal Appeals further observed that

petitioner’s trial counsel never objected to furnishing the

jury with copies of the transcript which identified the

speakers by name, and that petitioner’s trial counsel had

stipulated that the transcription which included the names

of the speakers accurately reflected the information on the

tape recording. (App.7&8) The court concluded its

observation on this point by stating that: ‘The trial judge

gave the defendant every opportunity to object to both the

accuracy and the admissibility of the transcription, but no

objections were made.”’ ( App. 8)

In response to the petitioner’s contention that members

of the jury panel failed to respond to pertinent voir dire

questions, the Alabama Court of Criminal Appeals ruled

that the petitioner’s motions for new trial and to subpoena

jurors were properly denied because petitioner’s counsel

had failed to comply with Alabama cases holding that a

motion challenging the qualifications of individual jurors -

filed after the commencement of trial -- must allege that the

grounds for the motion were not known to the defendant

before he went to trial or that he could not have known

them by exercising due diligence! (App.17&18)The Court of

Criminal Appeals further held that defendant was not

entitled to examine a juror whose affidavit had been filed

by the State because, again, the defendant had failed to

comply with Alabama law relative to the challenging of

individual jurors. ( App.18)

Finally, the Court of Criminal Appeals, noted that it was

at a ‘‘particular loss’’ in reviewing the trial court’s order

denying the petitioner’s motion for a new trial because the

particulars of that hearing were not reported. Because of

the failure of petitioner’s counsel to present a complete

record, the Court applied the presumption that the trial

court’s _ruling denying the motion for a new trial was

correct. > (App.18&19)The Court of Criminal Appeals noted

4See Williams v. State, 342 So.2d 1328, 1329 ( Ala. 1977).

This presumption is applied as to matters not shown in the record

pursuant to Robertson v. State, 29 Ala. App. 399, 197 So. 73, cert. den., 240

Ala. 51, 197 So. 75 ( 1940).

13

that while petitioner had filed a motion to correct the

record, the matter was never presented to the trial judge

for a ruling. ( App. 19)

Petitioner’s trial counsel also participated in the filing of

a petition for writ of certiorari to the Alabama Court of

Criminal Appeals in the Supreme Court of Alabama based

on the issue of juror impropriety. The writ was denied by

the Alabama Supreme Court which stated that it was

“compelled” .o deny the petition because petitioner’s

counsel had failed to employ appropriate Alabama Rules of

Appellate Procedure to present the issues asserted in the

petition.® ( App. 21)

The issue of the inadequacy of petitioner’s counsel was

not raised on petitioner’s direct appeal to the Alabama

Court of Criminal Appeals. That court concluded, however,

that it had ‘‘searched the entire record for error as required

by law and found no prejudicial error.’’” ( App. 19) The

petitioner herein asserts that the Court of Criminal

Appeals erred by failing to observe, sua sponte, the

obvious inadequacy of petitioner’s counsel which consti-

tuted plain error apparent on the record.

6 Alabama Rules of Appellate Procedure 10(f) and 10(k) (App. 28&24)

provide the method by which petitioner's counsel could have properly

raised the issue for review on certiorari in the Alabama Supreme Court.

They were not employed.

7The Court of Criminal Appeals is required, by §12-22-240, Code of

Alabama, 1975, to search the record for error. This statute is included in

the appendix hereto ( at p. 22).

14

ARGUMENT

THE FAILURE OF THE ALABAMA COURT OF

CRIMINAL APPEALS TO NOTE AND CONSIDER,

SUA SPONTE, THE OBVIOUS INADEQUACY OF

PETITIONER’S LEGAL REPRESENTATION AS

PLAIN ERROR ABRIDGED PETITIONER'S SIXTH

AMENDMENT GUARANTEE OF EFFECTIVE

LEGAL ASSISTANCE.

THE FAILURE OF THE ALABAMA COURT OF

CRIMINAL APPEALS TO PERMIT ISSUES GOING

TO ADEQUACY OF LEGAL REPRESENTATION TO

BE RAISED FOR THE FIRST TIME ON APPEAL

CONSTITUTES ABRIDGMENT OF THE SIXTH

AMENDMENT GUARANTEE OF ADEQUATE

LEGAL ASSISTANCE AND OF THE _ FOUR-

TEENTH AMENDMENT GUARANTEE OF DUE

PROCESS OF LAW.

THE FAILURE OF THE TRIAL COURT TO NOTE,

SUA SPONTE, THE OBVIOUS INADEQUACY OF

PETITIONER'S LEGAL REPRESENTATION

CONSTITUTED PLAIN ERROR WHICH WAS

PROPERLY BEFORE THE ALABAMA COURT OF

CRIMINAL APPEALS ON PETITIONER’S DIRECT

APPEAL FROM HIS JUDGMENT OF CONVIC-

TION.

The petitioner was represented at trial by incompetent

counsel. The record of the trial proceedings and the opinion

of the Alabama Court of Criminal Appeals establish that

the petitioner failed to receive adequate and effective legal

assistance from his retained trial counsel at critical points

during the trial and post-trial proceedings. The critical

points apparent on the record include:

1. The failure of trial counsel to object to or move to

exclude the voice identification made by the State’s

witness, H.E. Mitchell, after his testimony established that

15

the voice identification was based on hearsay. This failure

- led to the admission of a tape recording into evidence which

constituted the only corroboration of the testimony of the

chief prosecution witness.

2. Trial counsel’s stipulation that a transcribed copy of

the tape recording could be furnished to eac!. juror to read

while listening to the tape recording after the trial court

had ruled that the transcript constituted hearsay of the

‘‘rankest kind.” The transcript, not otherwise admissible

without trial counsel’s stipulation as to its correctness and

admissibility, identified the petitioner by name as one of

the participants in the conversation and _ further

corroborated the testimony of the chief prosecution

witness.

3. Trial counsel’s admitted ‘‘snap decision” in resting

petitioner’s case without first conferring with the petitioner

or with co-counsel. This snap decision prevented the

petitioner from effectively participating in the defense of

his case.

4. Trial counsel’s failure to comply with requirements of

Alabama cases in post-trial motions attacking the

qualifications of jurors for their failure to respond to

pertinent voir dire questions and infecting the verdict with

prejudice against the petitioner.

5. Counsel’s failure to preserve a record of post-trial

proceedings for review by the Alabama Court of Criminal

Appeals or to correct the record on appeal pursuant to

provisions contained in the Alabama Rules of Appeliate

Procedure.

6. Counsel’s failure to preserve issues for review by the

Supreme Court of Alabama on petition for writ of certiorari

to the Alabama Court of Criminal Appeals by failing to

comply with appropriate provisions of the Alabama Rules

of Appellate Procedure.

The issue of the inadequacy of legal representation was

not raised in the trial court, nor was it raised on the

petitioner’s appeal to the Alabama Court of Criminal

Appeals in which the petitioner’s trial counsel participated.

The petitioner asserts that the inadequacy of his legal

representation is clear and apparent on the face of the

16

record and that it constituted “plain error’ which the

Alabama Court of Appeals should have noted and

considered, sua sponte, on its review of petitioner’s

conviction.8

This Court has long recognized that defendants in

criminal cases are entitled to ‘effective assistance of

competent counsel,’’ and that counsel’s conduct must be

‘within the range of competence demanded of attorneys in

criminal cases’. McMann v. Richardson, 397 U.S. 559,

770-771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, 773 ( 1970).

In Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed.

158 ( 1932), this Court recognized that the right to effective

assistance of counsel in state trials was guaranteed by the

due process clause of the Fourteenth Amendment. In its

more recent decision in Cuyler v. Sullivan, 446 U.S. 335,

100 S.Ct. i708, L.Ed.2d_____ ( 1980), this Court

strongly reiterated prior decisions and held that a

defendant charged with a serious offense must have

counsel ‘‘able to invoke the procedural and substantive

safeguards that distinguish our system of justice’, and

that a criminal conviction obtained without sufficiently

able counsel ‘‘unconstitutionally deprives the defendant of

his liberty.’’

Cuyler v. Sullivan, Iu., laid to rest any contention that

defendants who retain lawyers are entitled to less

protection than defendants for whom the state appoints

counsel. !® *

8This case does not involve questions related to standards by which

competence is determined. The acts and omissions of petitioner's trial

counsel are clearly inadequate under any formulation heretofore

enunciated. For example, see the “farce and mockery” doctrine of the

Tenth Circuit [ Gillihan v. Rodriguez, 551 F.2d 1182, 1187, ( 10th Cir.)

cert. den., 434 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111 ( 1977)], Second

Circuit [| Rickenbacker v. Warden, 550 F.2d 62, ( 2nd Cir. 1976) cert. den.,

434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85 ( 1977)] , and First Circuit

| United States v. Ramirez, 535 F.2d 125, 129 ( 1st Cir. 1976) .

9Cuyler v. Sullivan, Id., 100 S.Ct. at p. 1715.

10]d. at p. 1716. The Cuyler v. Sullivan court further acknowledged thai

decisions made by defendants who retain counsel are “often uninformed”

and that there was no basis for drawing a distinction between retained

and appointed counsel.

17

Petitioner recognizes that claims of ineffective assistance

of counsel normally are raised for the first time in collateral

proceedings because there has not been an opportunity to

develop a record bearing evidence on the merits of the

allegation of inadequacy of representation. Where,

however, a defendant’s legal representation is grossly and

obviously inadequate - and this inadequacy is reflected on

the record - it constitutes ‘‘plain error’. This Court’s

decisions in Silber v. United States, 370 U.S. 717, 82 S.Ct.

1287, 8 L.Ed.2d 789 ( 1962); Johnson v. United States, 318

U.S. 189, 63 S.Ct. 549, 87 L.Ed. 704 ( 1943); and, United

States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed.

555 ( 1936), make clear that the doctrine of plain error

encompasses those errors which are obvious, affect the

substantial rights of the accused and, if uncorrected, would

be an effront to the integrity and reputation of judicial

proceedings.

In the instant case petitioner asserts that all of the

requirements of the plain error doctrine are met. Petitioner

further asserts that where those requirements are met and

the ‘substantial right’’ which is affected is the right to

adequate and effective legal assistance, this Court should

now hold that the Constitution demands that such error be

noted and considered, sua sponte, and that the failure of

trial and appellate courts to note such error, sua sponte, is

an abridgment of the Sixth Amendment right to effective

legal assistance of counsel and the Fourteenth Amendment

right to due process of law.

While this Court has not ruled on this specific issue,

several of the circuits have noted the duty of the trial court

to note and consider, sua sponte, the inadequacy of a

defendant's legal representation, but there is disparity in

the application of the doctrine among the circuits.!!

11For example, the positions of the Second Circuit as announced in

United States v. Aulet, 618 F.2d 182 ( 2nd Cir. 1980) and Fifth Circuit, as

announced in United States v. Stephens, 609 F.2d 230 ( 5th Cir. 1980)

favor collateral attack as to ineffective assistance of counsel claims which

were not raised in the trial court. The Ninth Circuit, in United States v.

Kazni, 576 F.2d 238 ( 9th Cir. 1978), recognizes that the failure of the trial

court to take note, sua sponte, of inadequate legal assistance might

18

The plain error doctrine is not new to Alabama appellate

courts. In fact, the Alabama Court of Criminal Appeals is

required by Alabama statute to ‘‘consider all questions

apparent on the record . . . and enter such judgment as the

law demands.” !2

The Alabama Court of Criminal Appeals has held that

questions involving the adequacy of a defendant’s legal

representation - which are not raised at trial - may not be

considered for the first time on direct appeal. In Boyd v.

State, 361 So.2d 1179 ( Ala.Cr.App. 1978), the Court of

Criminal Appeals addressed the contention that the

appellant had been denied his Constitutional guarantees of

assistance of effective counsel. This contention, and the

court’s ruling, are set out as follows:

‘* * []n the circumstances of this case, the appellant

[ contends that he] was denied his constitutional

guarantee of individual freedom by denial of assistance

of effective and reasonably competent counsel.’

‘‘We do not find that this issue was raised in the lower

court, and no ruling of the trial court thereon is here

presented.

‘“‘Our appellate courts have held that new matter may

not be raised for the first time in the appellate courts.

Alabama Digest, Vol. 7, Criminal Law, Key No.

1030( 1)( 2); Scroggins v. State, Ala.Cr.App., 341 So.2d

967, cert. denied, Ala., 341 So.2d 972; Cole v. State,

Ala.Cr.App., 337 So.2d 40, cert. denied, Ala., 337 So.2d

47; Cooper v. State, Ala.Cr.App., 331 So.2d 752, cert.

denied, Ala., 331 So.2d 759; Fountain v. Vredenburgh

Saw Mill Company, 279 Ala. 68, 181 So.2d 508; Alabama

Digest, Vol. 2, Appeal and Error, Key No. 169. The

Supreme Court, on appeal, will not consider constitu-

tional questions not raised in the court below. Howard v.

Footnote 11 Continued

constitute plain error, while the District of Columbia Circuit seems to

strongly recognize a duty on the trial court to observe and note, sua

sponte, inadequate assistance of counsel claims under the holding of

United States v. DeCoster, 624 F.2d 196 ( D.C.Cir. 1976). ,

12§12-22-240, Code of Alabama, 1975. A copy of this statute is included

in the appendix at page 22.

19

Pike, 290 Ala. 213, 275 So.2d 645; Alabama Digest, Vol.

2, Appeal and Error, Key No. 170( 2).”"!3 ( Emphasis

Added).

The Court of Criminal Appeals concluded its opinion in

petitioner’s case by stating that it had “‘searched the record

for error as required by law and found no prejudicial error.”’

However, the error to which the Court of Criminal Appeals

referred was not error committed by petitioner’s trial

counsel - as it pointed to these errors throughout its

opinion - but rather, the Court of Criminal Appeals was

referring to error committed by the trial judge. Under the

holding reiterated in Boyd v. State, Id., the petitioner’s

inadequate legal representation was not deemed to be error

because there was no ruling of the trial court on that issue

in the record. Of course, it is obvious that as long as the

trial court does not recognize, sua sponte, the issue of

inadequacy of a defendant’s legal representation, there will

be few, if any, instances where that issue will ever be

presented to the trial court and equally few instances where

the Court of Criminal Appeals will find that a defendant

has been denied a Constitutional right to effective legal

assistance.

The result is a clear federal-state dichotomy involving

the constitutional right to effective legal assistance of

counsel provided to criminal defendants. In federal courts

the responsibility of maintaining proper standards of

performance of counsel is placed with the trial judge, in

contrast to the Alabama state courts where the issue of

effective legal assistance of counsel cannot be raised except

by collateral attack on the judgment after the defendant's

conviction and incarceration. Under Alabama procedure

there is little incentive for the trial judge to ever note, sua

sponte, inadequacy of a defendant’s legal representation so

long as the Alabama appellate courts hold that the matter

cannot be raised for the first time on direct appeal.

In Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55

L.Ed.2d 319 ( 1978), this Court recognized that it is the

13Bovd v. State, Id., at pp. 1180-1181.

20

judge, not counsel, who has the “ultimate responsibility for

the conduct of a fair and lawful trial’’,!4 and in McMann v.

Richardson, supra, this Court stated:

‘“{ Jjudges should strive to maintain proper standards

of performance by attorneys who are representing

defendants in criminal cases in their court.” 5

Admittedly, defendants who do not raise the issue in the

trial courts and, thus, are precluded from raising it on

appeal, may resort to collateral attacks on the judgment in

state and federal coram nobis and habeas corpus

proceedings. However, those proceedings are generally

available only after incarceration and, even then, the result

is often affected by concerns such as respect for finality of

judgments and conservation of judicial resources. !®

Where, as in the present case, the petitioner’s trial

counsel participates in appellate proceedings, the need for

the reviewing appellate court to note and consider, sua

sponte, the inadequacy of a defendant’s trial counsel - when

such inadequacy appears on the record - becomes crucial

because a defendant, after the termination of his appeal,

may never know the constitutional defectiveness of his

legal representation.!7 Accordingly, petitioner submits

that under the facts of this case the Alabama Court of

Criminal Appeals was constitutionally required to note and

‘consider, sua sponte, as plain error the obvious inadequacy

of the petitioner’s legal representation, and this failure

denied petitioner his Sixth Amendment right to effective

legal assistance and his Fourteenth Amendment right to

due process of law.

14, akeside v. Oregon, Id., 435 U.S. at pp. 341-342, 98 S.Ct. at p. 1096.

15MecMann v. Richardson, supra, 397 U.S. at p. 771, 90 S.Ct. at p. 1449.

16These concerns emerged in Stone v. Powell, 428 U.S. 465, 96 S.Ct.

3037, 49 L.Ed.2d 1067 ( 1976).

17As stated by this Court in Geders v. United States, 425 U.S. 80, 88, 96

S.Ct. 1330, 1335, 47 L.Ed.2d 592 ( 1976): “Our cases recognize that the role

of counsel is important precisely because ( the ordinary) defendant is ill

equipped to understand and deal with the trial process without a lawyer's

guidance.” And as was stated by Justice Sutherland in Powell v. Alabama,

supra, 287 U.S. at p. 69, 53 S.Ct. at p. 64: “Even the intelligent and

educated layman has small and sometimes no skill in the science of law * *

He requires the guiding hand of counsel at every step in the proceedings

21

CONCLUSION

For the special and important reasons set out herein, a

writ of certiorari should issue to review the judgment and

opinion of the Alabama Court of Criminal Appeals.

Respectfully submitted,

Minky 8. Bile

Stanley B. Sikes

Sicko t/ fMLG Za

John W. Kelly, 111”

4

Sikes, Kelly, Edwards

& Bryant, P.C.

P.O. Box 1308

Selma, Alabama 36701

( 205) 872-6207

Counsel for Petitioner

Footnote 17 Continued

against him .. . If that be true of men of intelligence, how much more true

is it of the ignorant and illiterate, or those of feeble intellect.”. In this case,

petitioner was able to retain counsel at the trial and appellate levels and,

indeed, has retained counsel relative to this appeal; however, were it not

for the fact that petitioner obtained, read and was reasonably able to

understand the opinion of the Alabama Court of Criminal Appeals, he

could very well be in prison today - - - without ever learning of the

constitutional defects which attended his trial.

22

CERTIFICATE OF SERVICE

I do hereby certify that I have placed three ( 3) copies of

the above and foregoing petition for writ of certiorari,

together with the appendix thereto, in the United States

mail first-class postage prepaid, correctly addressed to

Honorable Charles A. Graddick, Attorney General, State

of Alabama, State Capitol, Montgomery, Al. 36130, ( the

only party required to be served), on this the 21st day

of April, 1981.

Alin key 8. pS

Stanley B. Sikes

23