Petition — Hopper v. Evans

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APR 18 1981

ALEXAND TR? L. STEVAS,

CLERA

IN THE SUPREME COURT OF THE UNITED-STATES

No.

OCTOBER TERM, 1980

ROBERT G. BRITTON, Commissioner,

Alabama Department of Corrections, and

JOSEPH OLIVER, Warden, Holman Prison,

Petitioners

Vv.

JOHN LOUIS EVANS, III,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

CHARLES A. GRADDICK

ATTORNEY GENERAL OF

ALABAMA

EDWARD E. CARNES

ASSISTANT ATTORNEY GENERAL

OF ALABAMA

Counsel of Record

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(205) 834-5150

ATTORNEYS FOR PETITIONERS

QUESTIONS PRESENTED

1. Does Beck v. Alabama, 100 S. Ct.

2382 (1980), require the reversal of all

Alabama pre-Beck capital convictions, in-

cluding those in which there was absolutely

no evidentiary basis for a lesser included

offense instruction and in which the

defendants admitted, confessed, and

pleaded guilty to the capital offense?

2. Ina federal habeas corpus pro-

ceeding may harm and prejudice be pre-

sumed, or must they be alleged and proven

by the habeas petitioner?

3. Is a guilty plea limited in

effect to being a waiver of defects in

proceedings occurring prior to the plea,

or does a guilty plea also conclusively

establish factual guilt and render irrele-

vant any constitutional violations which

do not stand in the way of conviction if

factual guilt is established?

4. May a federal court properly re-

fuse to certify state law questions other-

wise within the rule of Bellotti v. Baird,

428 U.S. 132 (1976), on the sole ground

that preemptive decision of the affected

federal constitutional issues moots the

state law questions?

PARTIES

The caption contains the names of all

parties to the proceeding inthe court

below.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED.....ccccccccseseee i

PARTIES .cccccccccecdscvcpccccccccccccce bd

TABLE OF CONTENTS... ccccccccccccccccedad

TABLE OF AUTHORITIES......ceeeecececee Vi

OPINIONS BBLOW..cccccccccccccccccccscce L

JURISDICTION. ccccc@eccccsdcccccccccses 2

CONSTITUTIONAL, STATUTORY, AND

RULE PROVISIONS INVOLVED.........2+-- 2

STATEMENT OF THE CASE...cccccccccccece 3

The ans eae 610 6'0 40 60666858 6 o6 ae 3

The State Trial Court

PFOCOOGINGBeccccccccccccccccceses 9

The State Appellate Court

PFOCEOGINGS.ccccccccccccccccccces 9

The Federal District

Court Proceeding... ccccccccccccce 10

The Federal Appellate

Court Proceeding. .cccccccccsccccce Ll

REASONS FOR GRANTING THE WRIT......... 15

I. The Decision Below Mis- —

interprets this Court's

Decision in Beck v.

Alabama, 100 S.Ct. 2382

(1980), and is in Con-

flict with Related De-

cisions of this Court........ 15

iii

II.

IIl.

PAGE

The Court Below Misin-

terpreted and Misapplied

the Beck Decision.ccccccccscee LS

Respondent Evans was Not

Harmed or Prejudiced in

any way by the Mere

Existence of the Pre-

CluBion ClauS@.cccccccccccese 29

The Rule of Presumed

Harm Adopted by the Court

Below is Contrary to De-

cisions of this Court........ 40

The Decision Below is

Contrary to Decisions of

this Court Concerning the

Effect of Guilty Pleas....... 44

The Court Below Adopted a

New Rule for Certification

of State Law Questions

that is Contrary to this

Court's Decisions and Poli-

Bim eadevassotvocectasescccescs OF

The Rule Established by

Decisions of this Court...... 48

The Rule Adopted by the

Court DOI 6 occ é6eeeceseeseene 49

The State Law Question

Concerning the Guilty

Pi a ies 6 6 6.6666 0:66.60 6608s 6s 53

The Important Policies

at SNS 6 60 6 66% 6 2 6 OKO 0 OOHRS 57

PAGE

A DECISION ON THIS PETITION

SHOULD BE HELD IN ABEYANCE

UNTIL THE ALABAMA SUPREME

COURT DECIDES A RELATED

CASE. ccccccccccccccccccccccccccccces IG

CERTIFICATE OF SERVICE...cccccccccccee 62

APPENDIX A: Fifth Circuit

Judgment ENNELY ecccccccvccccccccccces la

APPENDIX B: Fifth Circuit

OMERLON Oh BORGSFANG. « cccicecscesesets + ae

APPENDIX C: Fifth Circuit

Opinion before Rehearing............ 15a

APPENDIX D: Motion to Certify

Questions of Alabama Law to

the Alabama Supreme Court........... 23a

APPENDIX E: Alabama Rule of

Appellate Procedure 18.........2.... 30a

APPENDIX F: January 27, 1981

Letter to the Fifth Circuit......... 34a

APPENDIX G: Motion for Clari-

fication of En Banc Status.........-. 39a

APPENDIX H: Order Denying

Motion for Clarification

of En Banc ele at's 4.4 6.654 6s © See 45a

APPENDIX I: District Court

Opinion. ccccccccccccvcvccceceseccecs 46a

APPENDIX J: 28 Veer rt! re

TABLE OF AUTHORITIES

CASES PAGE

Barnes v. Atlantic & Pacific

Life Ins. Co., 530 F. 2d

t Cake EDIO) coccsboccovccccescedb, 57

Beck v. Alabama, 100 S. Ct.

980 Co cccccccccccvescceccess passim

Beck v. State, So. 2d _s,

“No. 77-530 (Ala. Dec. 19,

1980) (on remand from the

United States Supreme Court),

BILD OPeccccccccccceccccvccccvescceeday Gh

Beck v. Washington, 369 U.S.

96 RPP LTE PTCrPITITrerrir ec... os fT

Bellotti v. Baird, 428 U.S.

Todi ons Coe UN be eeeeerenhe 48,

57-58

Blackleege v. Allison, 431

Cee ite wah a kaw é0) 6 O66 6666 Ones

Boehning v. Indiana wap reyes

Asso., 4 U.S. i) eka de bese ee

Brady v. United States, 397

U.S. 970 Re ee a ae og ae

Dillard v, Virginia Indus-

trial Conuission, 416 U.S.

783 Ol) hr err on

Evans v. Britton, 628 F. 2d

r. 1980), as ex-

tended on rehearing, F.

___» Slip op. 4 D2. ccccccccccces PPassim

PAGE

Evans v. Birtton, 472 F. Supp.

(S.D. Ala. EP eR ce cocveevevecetesky ll

Evans v. State, 361 So. 2d

Ala. Cr. App. 1977),

aff'd, 361 So. 2d 666 (Ala.

, cert. denied, 440

U.S. 930 TREE bese ee senceeheeaseeete 10

Fornaris v. ricge Tool Co.,

Uebe Dat ahs oh 66 6 & 4 6t.6 6 ee

Graham v. State, So. 2d

—__, NO. 4 Div. 787, (Ala.

Cr. App. 1980), slip op.,

cert. granted, No. 79-568

TRAMs SERs Gp S9CMeoccceneceesecseene

Gregg v. Georgia, 428 U.S.

see teete nes é6ee ot eetaaceseeas

Kusper v. Pontikes, 414 U.S.

51 TAPES ob web eedeccecescuveesseseer

Lake Carriers' Asso. v. Mac-

Mullen, 406 U.S. 498 (1972) ....6+4+-49

Lehman Brothers v. Schein, 416

U.S. 386 ep PE parrereiaey

Lockett v. Blackburn, 571 F. 2d

th Cir.), cert. denied,

439 U.S. 873 PROVEN é vss s bb bouceen c4E~as

MeCarthy v. United States, 394

Uswe Tink San eho babes woes

McMann v. Richardson, 397 U.S.

759 bio Peay Ore |

vii

PAGE

Menna v. New York, 423 U.S.

have oceeeeateensescnene sna

Prothro v. State, 370 So. 2d

A a. Cr. App. ROTOR eth cctbécccnne

Ritter v. State, 361 So. 2d

654 (Ala. Cr. App. 1977),

remanded, 375 So. 2d 266

(Ala. Cr. App. 1978), aff'd,

375 So. 2d 270 (Ala. 1979),

vacated and remanded, 100

Bs Ces SUGGS UAPSU) ov cccécteuerceeeantennee

54-55,

59, 61

Tollett v. Henderson, 411 U.S.

Sake 60 00.0% 460 abe teens eee eee

Tyler v. Insurance Co. of

North America, 520 F. 2d

341 (5th Cir. 1975) ceccccceccceccecsae

STATUTES

Code of Alabama 1975,

§ > ad a Sbcccececdbhesetseeceaee

Code of Alabama 1975,

§ a mn 5 Ob Seas 6 0000 Chewheee een

28 U.S.C. § Sane ebescesvcteetemesnseeen

28 U.S.C. § re eee 10

viii

RULES OF COURT PAGE

Alabama Rule of Appellate

Procedure Duwce beh so 66660 6s sakes 50

Supreme Court Rule 17.1l(a).......... 60

» ix

OPINIONS BELOW

1. The opinion of the United States

Court for the Southern District of Alabama,

denying Respondent Evans' petition for a

writ of habeas corpus is reported as

Evans v. Birtton,1 472 F. Supp. 707 (S.D.

Ala. 1979), and is submitted as Appendix

I, hereto, pp. 46a - 134a, infra?

2. The opinion of the United States

Court of Appeals for the Fifth Circuit,

reversing the district court's denial of

Evans' petition, is reported as Evans v.

Britton, 628 F. 2d 400 (5th Cir. 1980),

and is submitted as Appendix C, hereto,

pp. 15a - 22a, infra.

3. The extension of the opinion of

the United States Court of Appeals for the

Fifth Circuit, in denying rehearing, is

Ithe caption of the published district court

opinion misspells the name of Robert G. Britton,

the Commissioner of the Alabama Department of

Corrections.

2The appendices to this petition are sepa-

rately bound pursuant to Rule 21.1(k).

not yet published but is submitted as

Appendix B, hereto, pp. 3a - 14a, infra.

JURISDICTION

The judgment and initial opinion of

the United States Court of Appeals for the

Fifth Circuit was issued on October 15,

1980. See Appendix A, p. la, infra, and

Appendix C, p. 15a, infra. The opinion was

extended and rehearing denied on March 9,

1981. See Appendix B, pp. 3a - 14a, infra.

CONSTITUTIONAL, STATUTORY, AND

RULE PROVISIONS INVOLVED

1. 28 U.S.C. § 2254, which is repro-

duced as Appendix J, hereto, pp. 129a -

134a, infra.

2. Alabama Rule of Appellate Proce-

dure 18, which is reproduced as Appendix

E, hereto, pp. 30a - 33a, infra.

STATEMENT OF THE CASE

The Facts

In September of 1976, Respondent

John Louis Evans, III, was released on

parole from an Indiana prison. (Tr. 238,

321)? Before being released, Evans had

made plans with a fellow inmate named

Wayne Eugene Ritter to go on a cross-

country crime spree when they got out.

(Tr. 322) After leaving Indianapolis on

Christmas Day, 1976, Evans and Ritter

committed armed robberies in three

different cities. (Tr. 323) They then

went to Mobile, Alabama to commit another

robbery. (Tr. 212, 324)

On January 5, 1977, in Mobile, Evans

and Ritter robbed a pawn shop where

Edward A. Nassar was employed. (Tr. 21l-

3References to "Tr." are references to the

two-volume record of Evans' state court trial.

That state trial record was an exhibit to the

answer in the district court, and is part of the

record on appeal.

219, 324-325) During the robbery, Evans

murdered Nassar by shooting him in the

back while Nassar's seven- and nine-year

old daughters watched. (Tr. 142, 215-219,

324-325)

In the two months after Evans murdered

Nassar, Evans and Ritter committed

numerous violent crimes, including more

robberies, in a half dozen different

states. (Tr. 326-329) They were finally

apprehended in Arkansas by F.B.I. agents

on March 7, 1977. (Tr. 156-166) The

Nassar murder weapon was found in Evans'

motel room. (Tr. 142-145, 157-162, 198-

200)

On March 8, 1979, after being in-

formed of his rights and waiving them,

Evans voluntarily confessed to F.B.1.

agents in Arkansas that he was guilty of

the robbery and murder of Nassar, as well

as of numerous other crimes. (Tr. 170-

174, 275-278) After waiving extradition,

Evans was taken to Mobile where, on

March ll, 1977, he voluntarily gave to

the Mobile Police Department another state-

ment confessing that he had robbed and

murdered Nassar, and had committed

numerous other crimes. (Tr. 288-292, 331)

The State Trial Court Proceedings

On April 4, 1977, Evans voluntarily

appeared before the Mobile County Grand

Jury, against the advice of his attorney,

and freely testified at length about

robbing and murdering Nassar. (Tr. 3, 230-

233, 318-337) Evans told the grand jury

that he fully understood the consequences

of his action in shooting Nassar, that

Nassar was not the first man he had

killed, and that he would not hesitate to

kill again. (Tr. 325, 333-336) Evans

also told the grand jury that he wanted

to be indicted as soon as possible, that

he intended to plead guilty, and that he

preferred execution to life in prison.

(Tr. 332, 337)

On April 8, 1977, the Mobile County

Grand Jury indicted Evans for the crime of

robbery during the course of which the

victim is murdered (Tr. 1), which is a

capital offense under Code of Alabama

1975, S 13-11-2(a) (2).

At arraignment on April 18, 1977,

against the advice of his attorneys, Evans

pleaded guilty. (Tr. 67-68, 71) The

trial court entered the guilty plea in

the official minutes of the court (Tr. 8),

and notwithstanding that plea the case

was submitted to a jury for the reasons

discussed on pp. 53-56 of this petition,

infra.

Evans and Ritter were jointly tried

before a Mobile County jury on April 26,

1977. (Tr. 8, 72-228) The State's

evidence included two eyewitnesses who

positively identified Evans, expert

testimony matching the death bullet to

Evans' pistol, and Evans' confession to

the F.B.I. (Tr. 100-101, 131-133, 142-

162, 182-183, 198-200, 277-278) 4

After the State rested, Evans filed

a written "Motion to Enter Guilty Plea,"

which he had signed acknowledging and

waiving his constitutional right not to

plead guilty. (Tr. 207-209, 252, 285-286)

Evans' written guilty plea was accepted by

the court and admitted into evidence.

(Tr. 207-209, 252, 285-286)

Thereafter, Evans took the stand and

testified against himself. (Tr. 210-216)

As his own direct examination, Evans told

the jury:

MR. EVANS: My name is John Louis

Evans, and on January the 5th,

I was involved in the crime of

Eddie Nassar. I am also the

one that did pull the trigger

and shoot and kill him during

4che State's evidence is detailed in Evans

v. State, 361 So. 2d 654, 656-661 (Ala. Cr. App.

1977), aff'd, 361 So. 2d 666 (Ala. 1978), cert.

denied, 440 U.S. 930 (1979).

the commission of a felony,

a robbery. Our whole trip was

based on robbery. Kind of a

spree. It was well planned,

and I've been in crime a long

time. Before you go back in

there, the only thing I've

got to say to the Jury is that

I've been at it a long time,

and if you don't come back

with a death sentence, which

is the only other thing I

think you can come out with,

I'm going to get out, and I'm

going to do it again. There's

not any question whatsoever.

I have no intention whatsoever

of ever reforming in any way,

so I think you should do what

you have to do, and I would

rather die by electrocution

than to spend the rest of my

life in the penitentiary. So,

I'm asking very sincerely

that you come back with a posi-

tive verdict for the State.

That's all I have to say.

(Tr. 211)

On cross-examination, Evans testified he

had shot Nassar in the back. (Tr. 215)

When asked if he felt any remorse for

murdering Nassar, Evans stated, "Not at

all." (Tr. 216) Evans also said that

his attorneys had advised him 20 to 30

times not to pursue the course of action

he was pursuing at trial. (Tr. 215-216)

After Evans testified, his co-

defendant Ritter took the stand and

testified. (Tr. 216-221) In his testi-

mony, Ritter confessed his part in the

crime and implicated Evans. (Tr. 218-221)

The jury took less than fifteen

minutes to convict Evans of the capital

offense. (Tr. 226-227) Following a

sentence hearing on April 27, 1977, the

trial court sentenced Evans to death.

(Tr. 9-12, 229-337)>

The State Appellate Court Proceedings

Evans' conviction and sentence were

automatically appealed pursuant to Code of

SRitter was also convicted of the capital

offense and sentenced to death. Ritter's convic-

tion and sentence were affirmed in Evans and Ritter

v. State, 361 So. 2d 654 (Ala. Cr. App. 1977),

remanded, 375 So. 2d 266 (Ala. Cr. App. 1978),

aff'd, 375 So. 2d 270 (Ala. 1979), vacated and re-

manded, 100 S. Ct. 3044 (1980). The Ritter case

is presently before the Alabama Supreme Court on

remand from this Court. See pp. 58 - 59 of this

petition, infra.

Alabama 1975, § 13-11-5, and were

affirmed by the Alabama Court of Criminal

Appeals in Evans v. State, 361 So. 2d

654 (Ala. Cr. App. 1977). The Alabama

Supreme Court affirmed in Evans v. State,

361 So. 2d 666 (Ala. 1978), and this Court

denied certiorari in Evans v. Alabama, 440

U.S. 930 (1979).

The Federal District Court Proceeding

On April 12, 1979, Evans filed a

petition for a writ of habeas corpus in

the United States District Court for the

Southern District of Alabama (R. 1-6) ,°

which had jurisdiction pursuant to 28

U.S.C. §2254. The district court entered

judgment on June 12, 1979, denying Evans'

petition (R. 114), and issued an

accompanying opinion which is reported as

6References to "R." are references to the

record on appeal in this case.

Evans v. Britton, 472 F. Supp. 707 (S.D.

Ala. 1979), and is reproduced as Appendix

I, pp. 46a - 128a, hereto.

The Federal Appellate Court Proceeding

Evans appealed to the United States

Court of Appeals for the Fifth Circuit,

which had jurisdiction pursuant to 28

U.S.C. §2253.

After submission of the appeal, this

Court issued its opinion in Beck v.

Alabama, 100 S. Ct. 2382 (June 20, 1980),

holding that it was unconstitutional to

execute a capital defendant whose jury had

not been permitted to consider a lesser

included non-capital offense verdict when

the evidence at trial would have supported

such a verdict. Thereafter, Petitioners

filed in the Fifth Circuit a supplemental

brief arguing that Evans' case was dis-

tinguishable from Beck both because there

was no basis for a lesser included offense

verdict at Evans' trial, and because

Evans had pleaded guilty. Evans, on the

other hand, argued that guilty pleas had

no effect in capital cases as a matter of

Alabama law.

On July 1, 1980, Petitioner filed a

motion requesting that the Fifth Circuit

certify to the Alabama Supreme Court

specified questions of Alabama law, the

answers to which would either avoid in

whole or part the federal constitutional

issues or at least substantially modify

those issues. (That motion is reproduced

as Appendix D, pp. 23a - 29a, hereto.)

On October 15, 1980, the Fifth

Circuit reversed the district court in an

opinion reported as Evans v. Britton, 628

F. 2d 400 (5th Cir. 1980). (That opinion

is reproduced as Appendix C, pp. 15a -

22a, hereto.) The per curiam opinion,

joined by two judges, refused to certify

the state law questions to the Alabama

Supreme Court, and held that Evans' con-

viction and sentence must be set aside.

One judge dissented because of the failure

to certify the state law issues.

Petitioners filed a Petition for Re-

hearing with a Suggestion for Rehearing

En Banc. Thereafter, by letter dated

January 27, 1981, Petitioners informed the

Fifth Circuit that the Alabama Supreme

Court had agreed to decide the case of

Evans' codefendant, Wayne Eugene Ritter,

on remand to it from this Court. The

letter further explained that in the

Ritter Cnnh-the Alabama Supreme Court

would decide state law issues which would

either moot or at least reshape the federal

issues in this case, and the letter re-

quested that a decision on the rehearing

petition be held in abeyance until the

Alabama Supreme Court released its Ritter

decision. (The letter is reproduced as

Appendix F, pp. 34a - 38a, hereto.)

On March 9, 1981, the Fifth Circuit

panel extended its original opinion but

denied the petition for rehearing in all

other respects. (The opinion on rehearing

is reproduced as Appendix B, pp. 3a -

l4a, hereto.)

On March 12, 1981, Petitioners filed

a Motion for Clarification of En Banc

Status (which is reproduced as Appendix G,

pp. 39a - 44a, hereto), and on March 20,

1981, the Fifth Circuit denied the motion

to clarify (in an order reproduced as

Appendix H, p. 45a, hereto) .? :

On March 20, 1981, the Fifth Circuit

stayed its mandate pending the filing of

this petition.

7the Fifth Circuit's refusal to clarify the

en banc status of this case is certainly curious

in view of its usual practice of entering an order

either granting or denying a request for en banc

rehearing.

Apparently, Petitioner's en banc suggestion

to the Fifth Circuit has either been "lost" by

that court, or it has been denied sub silento.

REASONS FOR GRANTING THE WRIT

The Decision Below Misinterprets

this Court's Decision in Beck v.

Alabama S. Ct.

an Ss in Con ct with Relate

Decisions of this Court

The Court Below Misinterpreted and

Misapplied the Beck Decision

In Beck v. Alabama, 100 S. Ct. 2382

(1980), this Court held that it was un-

constitutional to impose a sentence of

death on a defendant when the jury which

returned the capital verdict had not been

permitted to consider returning a lesser

included non-capital offense verdict and

“when the evidence at trial would have

supported such a lesser verdict." Id.,

at 2384. It was undisputed in the Beck

case that there was evidence to support a

lesser offense instruction and that the

jury would have received such an instruc-

tion had it not been for the unconstitutional

preclusion clause in Alabama's capital

punishment statute. Id., at 2385 & n. 5.

This Court carefully limited its decision

to "these circumstances." Id., at 2384,

In the present case the Fifth Circuit

has disregarded those careful limitations

and has held that the Beck decision re-

quires that all pre-Beck Alabama capital

convictions and sentences be reversed re-

gardless of the circumstances in a

particular case. The court below has

misinterpreted Beck as mandating what

amounts to a conclusive presumption of

harm for all pre-Beck capital cases.

The absolute nature of this new pre-

sumption of harm rule is illustrated by

its application to this case in which

there was not one jot, speck, or iota of

evidence at Respondent Evans' trial to

support any lesser included offense in-

struction. Evans not only admitted and

confessed his guilt at every stage, in-

cluding the trial, he even pleaded guilty

to the capital offense and asked to be

sentenced to death. See, pp. 4 - 9,

Supra.

After Evans received the capital con-

viction and death sentence which he had

so actively sought and which he so richly

deserved, the court below held that that

conviction and sentence must be set aside

because of the unconstitutionality of the

preclusion clause, a statutory provision

which did not even operate in Evans' case.

See, pp. 29 - 37, infra. Moreover, the

court below held, Evans v. Britton, 628

F. 2d 400, 401 (5th Cir. 1980), see, p.

lla, infra, that any contrary decision

"has been foreclosed by the Supreme Court."

The court below's misinterpretation

of the Beck decision is based on three

words — "inevery case" — which appear

in the Beck opinion on 100 S. Ct. at 2392.

By reading those three words and the |

paragraph they are in out of context, the

lower court has erroneously concluded

that this Court held in Beck that every

defendant who had been tried under the

Alabama capital punishment statute had

been subjected to unconstitutionally un-

reliable factfinding, regardless of the

particular circumstances in his case.

See, Evans v. Britton, 628 F. 2d at 401

(before rehearing), and slip op. at 4396

(on rehearing); pp. lla - 12a, 17a - 19a,

and 2la, infra.

This Court neither made nor intended

to make such a far-reaching holding in

Beck, because in the very first paragraph

of its Beck opinion, this Court limited

its holding as follows:

We granted certiorari to de-

cide the following question:

"May a sentence of death con-

stitutionally be imposed

after a jury verdict of guilt

of a capital offense, when the

jury was not permitted to con-

sider a verdict of guilt of

a lesser included non-capital

offense, and

would have supported such a

verdict?" U.S. , 100

S. Ct. 204, 62.L. Ed. 2d 132.

We now hold that the death penalty

may not be imposed under these

circumstances.

100 S. Ct. at 2384 (emphasis added). The

Beck case did not present any other

question, because the State conceded that

the evidence in that case was such that

had it not been for the preclusion clause

Beck's jury would have been instructed on

lesser included offenses. 100 S. Ct. at

2385 & n. 5. The present case is radically

different, but the court below has held

that this difference is of no legal

significance, because it has misinterpreted

the three words “in every case."

The words “in every case," as they

appear on 100 S. Ct. at 2392, mean in

every case within the scope of the grant

of certiorari. They man “in every case"

covered by what this Court described as

"these circumstances," 100 S. Ct. at

2384 — every case in which there was an

evidentiary basis for a lesser included

offense instruction which was not given.

They mean in Beck's case and in all the

many cases like it, but not in the unusual

case like this one in which the defendant

not only does not contest his guilt, but

also admits, confesses, and brags about

it, and even enters a guilty plea.

The full paragraph of the Beck

opinion from which the lower court lifted

the words "in every case" is as follows:

In the final analysis the

difficulty with the Alabama

statute is that it interjects

irrelevant considerations into

the factfinding process, di-

verting the jury's attention

from the central issue of

whether the State has satis-

fied its burden of proving

beyond a reasonable doubt

that the defendant is guilty

of a capital crime. Thus,

on the one hand, the unavail-

ability of the third option

of convicting on a lesser in-

Cluded off

ed offense may encourage

the jury to convic or an im-

LSss e reason—its belie

that the defendant is guilty of

some serious crime and should be

unished. On the other hand,

the apparently mandatory nature

cf the death penalty may en-

courage it to acquit for an

equally impermissible reason—

that, whatever his crime, the

defendant does not deserve

death. In any particular case

these two extraneous factors

may favor the defendant or the

prosecution or they may cancel

each other out. But in every

case they introduce a level of

uncertainty and unreliability

into the factfinding process

that cannot be tolerated ina

capital case.

100 S. Ct. at 2392 (emphasis added; foot-

note omitted). The two underlined state-

ments, referring to the “extraneous

factors" cannot possibly have been in-

tended to apply to literally “every case"

tried under Alabama's statute, including

the present one.

Take, for example, the first state-

ment or “extraneous factor" referred to:

"the unavailability of the third option

of convicting on a lesser included offense

may encourage the jury to convict for an

impermissible reason — its belief that

the defendant is guilty of some crime and

should be punished." This Court cannot

possibly have meant to say that in liter-

ally "every case" in which juries are not

permitted to consider lesser included

offense verdicts there is an intolerable

level of uncertainty and a risk of un-

reliable factfinding.

This Court cannot have meant to say

that, because the rule in every jurisdiction

in this country — including the federal

courts —is that lesser included offense

instructions need not be given when there

is absolutely no evidence to support them.

See, Beck v. Alabama, 100 S. Ct. at 2387-

2390 (collecting cases). No one has ever

suggested that the Constitution requires

that a capital jury be instructed on a

lesser included non-capital offense which

is not supported by the evidence, and this

Court itself has held, at least implicitly,

that the Constitution does not. See,

Gregg v. Georgia, 428 U.S. 153, 160-163,

215-216 (1976) (upholding Georgia's

statute which provides for lesser in-

cluded offense instructions only when

such instructions are supported by some

"view of the evidence").

This Court's statement in the Beck

opinion about jury verdicts being un-

reliable in the absence of lesser in-

cluded offense options must have been

intended to mean "in every case" in which

there was an evidentiary predicate for

lesser offense verdict options, and only

in such cases. Otherwise, that literal

language would reverse Gregg v. Georgia,

supra, in which the trial court refused

to instruct the jury on a pirticular

lesser included offense because there was

no evidence to support it. 428 U.S. at 161

n. 2. Taking the "every case" language out

of context and reading it literally, as the

lower court did, will also lead to the

invalidation of every single capital

punishment statute inthis country, be-

cause all of the statutes provide for

lesser included offense instructions when,

and only when, such instructions are

supported by the evidence.

A similar type of limitation must

also be applied to the phrase "in every

case" insofar as it refers to the second

"extraneous factor" set out in the para-

graph of the Beck opinion in question.

That second statement referring to another

"extraneous factor" that may affect the

jury is that "the apparently mandatory

nature of the death penalty may encourage

it to acquit for an equally impermissibie

reason — that, whatever his crime, the

defendant does not deserve death.” 100

S. Ct. at 2392 (footnote omitted). Surely,

this Court cannot have meant that there

was a constitutionally intolerable risk

of acquittal in Alabama capital cases

tried before the Beck decision, because

this Court pointed out in that same

opinion that there had been a 96% con-

viction rate in pre-Beck capital cases.

100 S. Ct. at 2391 & n. 18. This Court

cannot have meant to find that there had

been an intolerable risk of improper

acquittals in pre-Beck cases like the

present one unless it meant to hold that

a 4% acquittal rate was intolerably high.

The meaning of the words "in every

case" and the passage in the Beck opinion

from which the lower court lifted those

words is also evident from the particular

argument of the State that that passage

was written to answer. The State had ar-

gued that any effect the preclusion

clause might have in influencing a jury

to wrongfully convict a defendant of a

capital offense when the evidence showed

that the defendant was guilty of a

serious lesser offense would be offset

by the effect of the seemingly mandatory

verdict form requirement. The State had

argued that when there was an evidentiary

basis for a lesser offense the preclusion

clause's push toward improper convictions

would be offset by the verdict form's

push toward improper acquittals. Beck v.

Alabama, 100 S. Ct. at 2390 - 2391.

This Court rejected that argument

of the State, id., at 2391 - 2392, but

that is not the important point here. The

important point here is that the passage

referring to an intolerable risk of

erroneous factfinding "in every case"

came directly in answer to the particular

argument of the State which has been

referred to. The State argued that in

every case like Beck's in which there

was an evidentiary basis for lesser in-

cluded offense there would be an offsetting

of pressures on the jury. This Court in

rejecting that argument answered that in

every such case — "in every case" like

Beck's — there would be uncertain and

unreliable factfinding.

But in cases like the present one

where there was no evidentiary basis for

a lesser included offense, there was no

pressure on the jury to erroneously con-

vict the defendant of the capital offense

in order to prevent his release, because

there was no occasion for the jury to

think that the defendant was guilty of a

serious lesser offense and should not be

acquitted for that reason.

Nor do defendants like Evans have

any basis for complaint about the jury

verdict form requirement. Its only

possible effect would be to encourage

the jury to acquit a defendant who should

be convicted. Beck v. Alabama, 100 S. Ct.

at 2390, 2392. Since there was only a

4% acquittal rate, id., at 2391, there is

no evidence that the jury verdict form

requirement resulted in any improper

acquittals. In any event, Evans has no

basis to complain about being convicted

under a procedure which might have en-

couraged his jury to erroneously acquit

him. If the procedure erred in the present

case, it erred in Evans' favor, and Evans

was convicted in spite of it, not because

of it.

In summary, the court below mis-

interpreted and misapplied this Court's

decision in Beck v. Alabama, 100 S. Ct.

2382 (1980). In doing so, the court

below ignored this Court's own careful

limitation in the grant of certiorari and

holding in the Beck case, and it did

so by reading three words from the

opinion out of context. The net result,

a rule which conclusively presumes harm

in all cases regardless of the factual

circumstances in each individual case,

is not only unauthorized by any decision

of this Court but is totally at odds with

this Court's decisions.

Respondent Evans was Not Harmed or

Prejudiced in any way by the Mere

Existence of the Preclusion Clause

The court below felt compelled to

conclusively presume harm and prejudice,

because there was absolutely no evidence

on which to base such a conclusion. The

record on appeal includes the entire state

trial court transcript and the transcript

of the habeas hearing held before the

district court. Neither contains even a

speck of evidence that Evans' trial would

have been any different had the preclusion

clause not existed. All of the evidence

establishes beyond dispute that the pre-

clusion clause had no effect on Evans or

the trial.

As this Court has noted, absent the

preclusion clause the rule in Alabama is

that a defendant is entitled to a lesser

included offense instruction if there is

any reasonable theory from the evidence

which would support a verdict for the

lesser instead of the higher offense.

Beck v. Alabama, 100 S. Ct. at 2385 n. 5.

Under Alabama law, a defendant is entitled

to a lesser included offense instruction

only if there is some evidentiary basis

for it — some basis in the evidence from

which the jury could reasonably conclude

that the defendant was innocent of the

higher offense but guilty of some

specific lesser offense. As the Alabama

Supreme Court said in severing the pre-

clusion clause from the remainder of the

capital punishment statute, "[a]bsent the

fourteen words which constitute the

preclusion clause, the long established

Alabama statutory and common law rule

will apply so that juries in capital

cases will be instructed on any lesser

included offenses supported by the evidence."

Beck v. State, So. 2d , No. 77-

530 (Ala. Dec. 19, 1980) (on remand from

the United States Supreme Court), slip

op. at 24.

The preclusion clause came into

operation only in cases, like Beck, where

there was an evidentiary basis for lesser

included offense instructions which would

have been given had it not been for the

preclusion clause. In cases like the

present one, however, the preclusion

clause had no effect because there would

have been no lesser included offense in-

struction given anyway. There was no

evidentiary basis for lesser included

offense instructions in this case, because

Evans admitted, confessed, and pleaded

guilty to the capital offense at every

stage of the case up to and including

the trial itself. See pp. 4 - 9,

Supra. 8

Without disputing the fact

that there was no evidence to

support any lesser included offense

verdict, the court below said:

It seems to us, however, that

it offends the most fundamental

notions of fairness for the

state first to tell Evans that

there is no lesser offense and

then later urge that this death

sentence should be upheld be-

cause he failed to present

evidence which would prove a

lesser included offense.

Evans v. Britton, 628 F. 2d 400, 401 (5th

Cir. 1980); p. 20a, infra. That state-

ment totally misapprehends the nature of

the preclusion clause and the way it operated.

8If there is any doubt about whether as a

matter of state law the jury in this case would

have been instructed on any lesser included

offense absent the preclusion clause, then the

court below should have certified that question

to the Alabama Supreme Court. The Petitioners

moved the court below to do so. See paragraph

l(c) of the Motion to Certify Questions of

Alabama Law to the Alabama Supreme Court, which

is reproduced on pp. 24a - 25a of the appendix.