Petitioners Reply Brief — Hopper v. Evans

MAR 15 1999

NO. 80-1714 ALEXANDER L. sTEvas.

= CLERK

IN THE

Supreme Court of the Bnited States

OCTOBER TERM, 1981

JOSEPH S. HOPPER, Cominissioner, Alabama

Department of Corrections, and

JAMES D. WHITE, Warden, Holman Prison,

PETITIONERS

JOHN LOUIS EVANS,

RESPONDENT

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

REPLY BRIEF FOR PETITIONERS

CHARLES A. GRADDICK

Alabama Attorney General

EDWARD E. CARNES

Assistant Alabama Attorney General

Counsel of Record

SUSAN BETH FARMER

Assistant Alabama Attorney General

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

(205) 834-5150

Counsel for Petitioners

TABLE OF AUTHORITIES

ARGUMENT

I. EVANS’ ARGUMENT CONCERNING THE

TABLE OF CONTENTS

VALIDITY OF HIS CONVICTION

SHOULD BE REJECTED

A. Evans’ Argument Concerning The

B.

Jury Verdict Form Requirement

Evans’ Argument Concerning the

Harm and Prejudice Requirement

in Eighth Amendment Cases

1.

The Due Process Clause and Not

the Eighth Amendment Controls

the Validity of the Conviction......

The Eighth Amendment is Not

Violated in a Case by the Mere

Existence of an Unconstitutional

Provision Which Neither Applies

to Nor Affects the Case ...........

Evans’ Argument that the Harm and

Prejudice Prerequisite Should be

Dispensed with Because of the Nature

of the Preclusion Clause

1.

The Record is Not

Incomplete or Flawed.............

This Court’s Decisions Do Not

Support Evans’ Position...........

Evans Has Never Attempted to

Make the Record More Complete

and He is Not Asking for an

Opportunity to Do So Now .........

D. Evans’ Argument that He Was

Harmed and Prejudiced By the

PEI sd oxcnd icisacescuacicees 13

1. Evans’ “Instinctive Self-

Preservation” Argument is

PRN ou G cdwkvibucs deve snachbne aes 13

2. Evans’ Parole Eligibility

Argument Has No Basis in Fact...... 15

8. The Burden of Proof is on Evans ..... 16

II. EVANS’ ARGUMENTS CONCERNING

THE EFFECT OF HIS GUILTY PLEA

SHOULD BE REJECTED ...............006 17

III. EVANS’ SENTENCE IS VALID............. 18

IV. THE CERTIFICATION QUESTIONS. ........ 19

CONCEIUBION cccasccccccccccccccccccccoccscseces 20

iii

TABLE OF AUTHORITIES

Case Page

Adams v. Texas, 448 U.S. 38 (1980) ............006- 2

Battie v. Estelle, 655 F. 2d 692

DT EE sccacacueieene bustnwsoshenvenens 3

Beck v. Alabama, 447 U.S. 625

DD {caltdanninncs sab aedanes weaikhcannenk passim

Beck v. Washington, 369 U.S. 541

EE ST NGRARAAN GARE RNN LARA EL NeKneetseressees 13

Brady v. Maryland, 378 U.S. 88

CREED S6eedccbou seen ceasecevecovedsconeseusees 2-3

Caldwell v. State, 203 Ala. 412, 84

EG oiea hice be686ndbs cecdidasensere 14

Chapman v. California, 386 U.S. 18 (1967) ...... 16-17

Coker v. Georgia, 483 U.S. 584

SEM LSESUEDGLCESSEACS ENS CAGb abide aeaeneseee 5-7

Cook v. State, 369 So. 2d 1251

SE RUR SAK SKh US 5E des ean60 65508048000008s 3

Corn Products Refining Co. v. Eddy,

SR 8

Cuyler v. Sullivan, 446 U.S. 335

ST ccacseeenheusscekbseecsosssoceseces 10-11

Daughdrill v. State, 118 Ala. 7, 21

i. cena eakiesstnesgeneebinotns 14

Davis v. Alaska, 415 U.S. 308

LURE Cid egughaduGshesensbnasseeecoenees ee 10

Dobbert v. Florida, 482 U.S. 282

DP cdededbe tbunenedvewsernelssveneeeennss 6

Eddings v. Oklahoma, 102 S. Ct. 860

(1GBB) .crcccccccccccccccvscccsccscccccccsveces 2

iv

Estelle v. Gamble, 429 U.S. 97

DT i ccube. Ganbbk ctseuesnbeseensineqgcess’ 5

Estelle v. Smith, 451 U.S. 454

DN Libeks copedanennesscdséc¥iedseseoenebes 3

Evans v. State, 361 So. 2d 654

(Ala. Cr. App. 1977), aff'd, 361

So. 2d 666 (Ala. 1978), cert.

denied, 440 U.S. 980 (1979) .........ccc eee 8, 15-16

Ferguson v. Georgia, 365 U.S. 570

GUL Gidubkibghsbepheeeseenthessesenesss 10

Furman v. Georgia, 408 U.S. 238

DN Gie esaUbL eR Cee ea ricdeeseuneetesenets 2,5

Gideon v. Wainwright, 372 U.S. 335

seed SRR ES Fo aS a at eS ee Tee oe 10

Gardner v. Florida, 480 U.S. 349

DCCL Se deus baveacassi bh) bcoccenenssesses 3

Godfrey v. Georgia, 446 U.S. 420

a Ctic et Gakeestsevsveacsnetebeconawe 7

Gregg v. Georgia, 428 U.S. 153

CSU ATT ECs cbhes Kheks0dneboevesecesdeends 5

Hamilton v. Alabama, 368 U.S. 52

DRS Uuc Vi sGVORNRAee cksc cdc rvedseceyeetase 10

Harrington v. California, 395 U.S.

Ter ecdeek Gh eteetessésecpeeecseenes 12

Henson v. State, 247 Ala. 125, 22

es ccacccesveveacveencseenee 14

Holloway v. Arkansas, 435 U.S. 475

DU eee Gebansaaeuehisdenesdsienvects 10-11

Johnaon v. State, 399 So. 2d 859

Sc ch SRAONG3660406n066680c0ccsenseesas 3

Keeble v. United States, 412 U.S.

ES. Lec dosdhek beuseedeeckseecenbans 5

Vv

Kentucky v. Whorton, 441 U.S. 786

ST RbCl dad bdnhessebbed cbebédevsecsees 1l

Lane v. State, No. 80-808 (Ala. Feb. 5,

Pct etchasanegeeaskecscesaseescee sees 17-18

Lockett v. Ohio, 488 U.S. 586

DT Siih cated peaheeuseveuresseeneseeeeesce 2

Napue v. Illinois, 360 U.S. 264 (1959) ..........008. )

Payne v. State, 391 So. 2d 140

(Ala. Cr. App.), cert. denied,

891 So. 2d 146 (Ala. 1980) ......... cece eee eens 8

Prothro v. State, 370 So. 2d 740

SG as SUED cecssevececccccesteocecees 17

Raines v. State, 342 So. 2d 1848

SS NG EE EDs cc bdeccvoccccaccccecece 14-15

Reed v. State, 407 So. 2d 162 (Ala.

ST PUUEUSESES Chet bOnebeeseseecesseceeeieeses 8

Rhodes v. Chapman, 101 S. Ct. 2392

DT CTiACIbGSss WihaSenososseotcocceseesce 5

Ritter v. State, 375 So. 2d 270 (Ala.

1979), vacated and remanded, 448 U.S.

903 (1980), on remand, 408 So. 2d 154

(Ala.), vacated and remanded, 102 S. Ct.

376, on remand, No. 77-798 (Ala. 1981),

cert, pending, No. 81-1600 (U.S., filed

LG. poe oie cae ceeeeseeceseecesss 8, 18

Robinson v. California, 370 U.S.

SY Ut cLRUcE Ge dbe eebeesse oddeeceseevess 5

Rose v. Hodges, 423 U.S. 19 (1975) ..........00eeees 3

Rose v. Lundy, 50 U.S.L.W.

ee EE Ge PU a bccccscecccccceccessobers 17

Sansome v. United States, 380 U.S.

EE i co buccdabsiesebese uveasensaeatees ®

vi

Smith v, Phillips, 50 U.S.L.W.

I Re vo andcddccasvoeesesnacves 11

Spivey v. Zant, 661 F. 2d 464 (5th

Sy cc AUkeUUuktunteesesesensecacidesses 3

Truax v. Corrigan, 257 U.S. 312

DE AGkeUbeteuketiededees veestesvssbuceatats 9

United States ex rel. Brodie v.

Hilton, 496 F. Supp. 619 (D.N.J.

DE Ghat chausatitase wes cbesdccntenessaeness 5

United States v. Marion, 404 U.S.

I df co ea Ge SS Cea euuemseesnss ohens 11

United States v. Morrison, 449

Re eres ees Cu acuaesbeacbences 10

Wainwright v. Sykes, 483 U.S. 72

EN Ganda aUcnk scan kebcs uke Cbbawednetedaneas 12

Washington v. Texas, 388 U.S. 14 (1967)............ 10

Webb v. Texas, 409 U.S. 95 (1972) ...... ccc cece eeees 10

Weems v. United States, 217 U.S.

EE ch cde chckakWeuseeee cs densedeuaneas 5

White v. Maryland, 378 U.S. 59

DL uh eknudne neh cbbeateatbteséivieescsodbe 10

Witherspoon v. Illinois, 391 U.S.

ENG Udcc acl tane buevkeeevdekees&nunkxens 2

Wong Doo v. United States, 265 U.S.

PED Sasnaknk Vaudesee da bas ivceewanedsesxe 13

Woodson v, Louisiana, 428 U.S. 280

DE idauaecuauuscudddessedewdebuesesetunsla 2

Statutes

Code of Alabama 1975,

BUS-11-MO) ov ccccccccccccccscccccccccccccccece 1

vii

Code of Alabama 1975,

$818-11-8 and 18-11-4 .....ccccccccvccvcees eeks

Other Authorities

Alabama Canons of Professional

Responsibility, DR 7-102(A)(4) and

GRE sé cde veniswesueceecedvecesteceensskessaun

1

ARGUMENT

I,

EVANS’ ARGUMENTS CONCERNING

THE VALIDITY OF HIS CONVICTION

SHOULD BE REJECTED

A. Evans’ Argument Concerning The

Jury Verdict Form Requirement -

On pp. 16-18 of his brief, Evans appears to argue that,

even disregarding the preclusion clause, his conviction

should be set aside because of the jury verdict form require-

ment discussed in Beck v. Alabama, 447 U.S. 625, 633,

§38-645 (1980). That statutory provision required that

every verdict form convicting a defendant of a capital

offense “fix the punishment at death,” Code of Alabama

1975, §13-11-2(a), even though the actual sentencing deci-

sion was made later by the trial court judge following a

post-conviction hearing. Jd., at §§13-11-3 and 13-11-4(R. 67;

Tr. 9-15, 229-243).

While Alabama’s pre-Beck statute under which Evans

was convicted was not actually a mandatory death penalty

statute (R. 67), it was “an apparently mandatory death

penalty statute” from the jury’s perspective because the

jury was not told of the trial judge’s sentencing function.

Beck v. Alabama, 447 U.S. at 638-639 & n. 15.

This Court did note in Beck that, “the apparently man-

datory nature of the death penalty may encourage it [the

jury] to acquit for an equally impermissible reason — that,

whatever his crime, the defendant does not deserve death.”

Id., at 642-648 (footnote omitted). This Court also observed

that, “it is manifest that the jury’s verdict must have a

tendency to motivate the judge to impose the same sentence

that the jury did.” Jd., at 645. The facts in Beck were

entirely different from the facts in this case, but even

assuming that the verdict form requirement had the maxi-

mum imaginable effect on this case, it could only have

affected Evans’ sentence and not his conviction.

There are only two conceivable effects that the verdict

form requirement could ever have had in any case. One is to

have impermissibly encouraged an acquittal. Beck v. Ala-

bama, 447 U.S. at 642-643. This Court has never before

suggested that a defendant is entitled to have his conviction

reversed because of an error which improperly encouraged

the jury to acquit him, and it should not do so now. Evans’

argument that he was “clearly prejudiced” by the verdict

form requirement because “the jury’s determination of

Evans’ guilt may have been impermissibly infected” by

that requirement is utter nonsense. If the jury’s guilt deter-

mination was “infected” by the verdict form requirement

at all, it was infected in Evans’ favor, and he was convicted

in spite of the verdict form rather than because of it.

The only other conceivable effect the verdict form

requirement could ever have had in any case was to have

improperly motivated or encouraged the trial judge to sen-

tence the defendant to death. Beck v. Alabama, 447 U.S. at

645. That did not happen in this case, for the reasons dis-

cussed on pp. 18-19, infra. But even assuming that it did,

such an error could only have affected the sentence and not

the conviction. This Court has never held that an error

which affects a capital sentencing decision vitiates an oth-

erwise valid capital conviction. Indeed, it has always held

to the contrary.

In Witherspoon v. Illinois, 391 U.S. 510, 523 n. 21

(1968), this Court held that its decision did not “render

invalid the conviction, as opposed to the sentence .. .” The

per curiam opinion in Furman v. Georgia, 408 U.S. 238, 240

(1972), reversed the judgment in each case included therein

only “insofar as it leaves undisturbed the death sentence

imposed,” and remanded each case for further proceedings

not inconsistent with that opinion. Accord, e.g., Woodson v.

Louisiana, 428 U.S. 280, 305 (1976) (joint opinion of Ste-

wart, Powell, and Stevens, J.J.); Lockett v. Ohio, 438 U.S.

586, 608-609 (1978); Adams v. Texas, 448 U.S. 38, 51 (1980);

Eddings v. Oklahoma, 102 S. Ct. 869, 877 (1982). Sentenc-

ing errors simply do not undermine otherwise valid convic-

tions. Cf., Brady v. Maryland, 373 U.S. 83, 88-90 (1963)

(remedy for suppression of evidence material only to sen-

tencing is limited to ordering a new sentence hearing).

After vacating the death sentence in Gardner v. Flor-

ida, 430 U.S. 349, 362 (1977), this Court remanded the case

to the court below “with directions to order further [sent-

ence] proceedings at the trial court level not inconsistent

with this opinion.” Likewise, Estelle v. Smith, 451 U.S. 454,

473-474 (1981), recognized that where this Court finds

error in a capital sentence but the conviction “remains

undisturbed, the State is free to conduct further [capital

sentence] proceedings not inconsistent with this [Court’s]

opinion.” Accordingly, even if this Court concludes that the

verdict form requirement affected the sentence in this case,

the ultimate result should be like that in Gardner and

Estelle. Evans’ capital conviction should be reinstated and

the State should be free to conduct new sentence proceed-

ings in this case.' The verdict form requirement is simply

not relevant to the validity of Evans’ conviction.

B. Evans’ Argument Concerning the

Harm and Prejudice Requirement in

Eighth Amendment Cases

‘As Estelle v. Smith, supra, implies, whether curative sentence pro-

ceedings can be conducted or the sentence should be commuted to one

less than death is a question of state law. See, Spivey v. Zant, 661 F. 2d

464, 478-479 (5th Cir. 1981); Battie v. Estelle, 655 F. 2d 692, 703 (5th Cir.

1981); cf., Rose v. Hodges, 423 U.S. 19 (1975) (holding that whether and

how to commute a pre-F'urman death sentence is not a federal issue).

Alabama law does provide for curative sentence proceedings to

correct errors which affect a capital sentence but not the conviction. E.g.,

Johnson v. State, 399 So. 2d 859, 874 (Ala. 1979); Cook v. State, 369 So. 2d

1251, 1257-1258 (Ala. 1979). If necessary, a new sentence proceeding in

this case could be conducted before a new jury in accordance with the

guidelines set out in Beck v. State, 396 So. 2d $45, 662-664 (Ala. 1980). See,

Ritter v. State, 403 So. 2d 154, 157 (Ala.) (separate opinion of Jones, J.,

joined by Maddox and Adams, J.J.), vacated and remanded on other

grounds, 102 S. Ct. 376 (1981). The new sentencing jury would not be

informed of the mandatory penalty language contained in the verdict of

the jury which convicted Evans, and the new sentence decision would

therefore not be tainted by it.

2For the reasons discussed on pp. 18-19, infra, Evans’ sentence as well

as his conviction is valid and should be reinstated.

Evans’ argument that it is not necessary for him to

prove that the preclusion clause harmed or prejudiced him

because this is an Eighth Amendment case should be

rejected for two independently adequate reasons. First, the

validity of Evans’ conviction is controlled by the Due Pro-

cess Clause, not the Eighth Amendment. Second, even if

the Eighth Amendment were controlling, lack of harm or

effect would still be relevant.

1. The Due Process Clause and Not the

Eighth Amendment Controls the

Validity of the Conviction

Evans’ habeas petition itself recognizes that the

Eighth Amendment is not relevant to the validity of his

conviction. In neither his original nor amended petition did

Evans ever allege that his conviction was invalid on Eighth

Amendment grounds. (A. 48-51, 57) Instead, the petition’s

only averment that the preclusion clause affected the valid-

ity of Evans’ conviction was an allegation that the clause

“which precluded juries from considering lesser included

offenses violated his right to due process-of law.” Respond-

ent’s Brief at 10 (footnote omitted).

Evans’ contention that Beck v. Alabama, 447 U.S. 625

(1980), is based on the Eighth Amendment’s Cruel and

Unusual Punishment Clause rather than the Due Process

Clause is wrong. Both grounds were argued in Beck and the

decision does not explicitly specify either, but the opinion is

concerned more with due process considerations of fairness

and with the integrity of the factfinding process than with

what constitutes cruel and unusual punishment.‘ This

’Paragraph 12 of the petition did say that Evans’ “conviction and

sentence’ were obtained in violation of his rights as guaranteed by the

Eighth and Fourteenth Amendments,” but it went on to specify that his

conviction was attacked on Fourteenth Amendment grounds while his

sentence was attacked on both Eighth and Fourteenth Amendment

grounds. (A. 49-50)

‘Likewise, rather than being concerned with notions of cruel and

unusual punishment, the court below decided this case on what it per-

ceived to be “fundamental notions of fairness.” 628 F. 2d at 401, Pet. App.

at 20a.

tencing is limited to ordering a new sentence hearing).

After vacating the death sentence in Gardner v. Flor-

ida, 430 U.S. 349, 362 (1977), this Court remanded the case

to the court below “with directions to order further [sent-

ence] proceedings at the trial court level not inconsistent

with this opinion.” Likewise, Estelle v. Smith, 451 U.S. 454,

478-474 (1981), recognized that where this Court finds

error in a capital sentence but the conviction “remains

undisturbed, the State is free to conduct further [capital

sentence] proceedings not inconsistent with this [Court’s]

opinion.” Accordingly, even if this Court concludes that the

verdict form requirement affected the sentence in this case,

the ultimate result should be like that in Gardner and

Estelle. Evans’ capital conviction should be reinstated and

the State should be free to conduct new sentence proceed-

ings in this case.' The verdict form requirement is simply

not relevant to the validity of Evans’ conviction.?

B. Evans’ Argument Concerning the

Harm and Prejudice Requirement in

Eighth Amendment Cases

‘As Estelie v. Smith, supra, implies, whether curative sentence pro-

ceedings can be conducted or the sentence should be commuted to one

less than death is a question of state law. See, Spivey v. Zant, 661 F. 2d

464, 478-479 (5th Cir. 1981); Battie v. Estelle, 655 F. 2d 692, 703 (5th Cir.

1981); ef, Rose v. Hodges, 423 U.S. 19 (1975) (holding that whether and

how to commute a pre-Furman death sentence is not a federal issue).

Alabama law does provide for curative sentence proceedings to

correct errors which affect a capital sentence but not the conviction. E.g.,

Johnson v. State, 399 So. 2d 859, 874 (Ala. 1979); Cook v. State, 369 So. 2d

1251, 1257-1258 (Ala. 1979). If necessary, a new sentence proceeding in

this case could be conducted before a new jury in accordance with the

guidelines set out in Beck v. State, 396 So. 2d $45, 662-664 (Ala. 1980). See,

Ritter v. State, 403 So. 2d 154, 157 (Ala.) (separate opinion of Jones, J.,

joined by Maddox and Adams, J.J.), vacated and remanded on other

grounds, 102 S. Ct. 376 (1981). The new sentencing jury would not be

informed of the mandatory penalty language contained in the verdict of

the jury which convicted Evans, and the new sentence decision would

therefore not be tainted by it.

?For the reasons discussed on pp. 18-19, infra, Evans’ sentence as well

as his conviction is valid and should be reinstated.

Court relied more on Keeble v. United States, 412 U.S. 205

(1973), than on any other precedent, 447 U.S. at 633-635,

and Keeble is a non-capital case that expressly espouses due

process principles. In addition, this Court’s statement, dis-

cussing evidentially supported lesser included offense

instructions, that it was not deciding “whether the Due

Process Clause would require the giving of such instruc-

tions in a non-capital case,” 447 U.S. at 638 n. 14 (emphasis

added), implies that the Court was deciding that the Due

Process Clause requires the giving of such instructions ina

capital case. See, United States ex. rel. Brodie v. Hilton, 496

F. Supp. 619, 622(D.N.J. 1980) (referring to Beck’s “conclu-

sion that due process was denied”).

Moreover, language, history, and precedent confine

the purview of the Eighth Amendment’s Cruel and Unus-

ual Punishment Clause to issues of punishment — its

nature, its purpose, its proportionality, its pattern, and the

conditions under which it is imposed. E..g., Rhodes v. Chap-

man, 101 S. Ct. 2392 (1981); Estelle v. Gamble, 429 U.S. 97,

102-105 (1976); ‘Coker v. Georgia, 433 U.S. 584, 591-592,

598-600 (1977) (plurality opinion); Gregg v. Georgia, 428

U.S. 153, 169-176, 186-187 (1975) (joint opinion of Stewart,

Powell, and Stevens, J.J.); Furman v. Georgia, 408 U.S. 238

(1972). In its two hundred year history, this Court has never

invalidated on Eighth Amendment grounds a conviction as

distinguished from a punishment.

Unless this Court is willing “to wrench the Eighth

Amendment from its language and history,” Rhodes v.

Chapman, 101 S. Ct. at 2399 (1981), the Due Process Clause

and not the Eighth Amendment determines the validity of

Evans’ conviction.

5’ Weems v. United States, 217 U.S. 349, 382 (1910), in which the entire

proceedings were dismissed for want of an alternative punishment is no

exception, because it was the punishment and not the conviction held to

violate the Cruel and Unusual Punishment Clause. Nor is Robinson v.

California, 370 U.S. 660 (1962), an exception, since the holding of that

case was that the punishment — any punishment — was cruel and

unusual when inflicted for a status crime.

2. The Eighth Amendment is Not Violated in

a Case by the Mere Existence of an

Unconstitutional Provision Which Neither

Applies to Nor Affects the Case

Even if this case is controlled solely by the Eighth

Amendment, the fact that the preclusion clause did not

harm or affect Evans is still determinative. As the cases

cited on pp. 2-3 of this brief, above, indicate, this Court has

always adhered to the doctrine that capital sentencing

errors which violate the Eighth Amendment do not vitiate

otherwise valid capital convictions. Implicit in that doc-

trine is a concept at least akin to a requirement of harm

—the Eighth Amendment and its remedies extend only so

far as is necessary to correct the harm done by the defect or

error in question.

In this case, if the preclusion clause did violate the

Eighth Amendment, it could only have done so in those

cases in which it had some effect — either by barring lesser

included offense instructions which otherwise would have

been given, or by causing a defendant to forego presenta-

tion of lesser offense evidence that he would otherwise have

presented. The preclusion clause had neither effect in this

case. Brief for Petitioners at 22-30. Therefore, it did not

violate the Eighth Amendment in this case.

Stated differently, it is at war with logic to suggest that

an otherwise permissible punishment becomes “cruel and

unusual” in a case because of the mere existence of a statu-

tory provision which has absolutely no effect in the case.

Cf., Dobbert v. Florida, 482 U.S. 282, 300 (1977) (rejecting a

capital defendant’s ex post facto claim because it amounted

to “complaining in the abstract about some change in the

law, which as events proved, would have no applicability to

his case.”) The absurdity of Evans’ position is illustrated by

analogy to Coker v. Georgia, 483 U.S. 584 (1977), which

struck down as violative of the Eighth Amendment the part

of Georgia’s statute which made non-homicide rape a capi-

tal offense. If the Eighth Amendment is violated by the

mere existence of an unconstitutional provision in a capital

statute without regard to whether that provision harms or

affects a particular defendant, then the convictions or at

least the death sentences are due to be set aside in all

Georgia pre-Coker capital cases including those non-rape

cases that clearly involved murder.® It matters not that the

Coker provision did not apply to and had no effect in those

cases — something which is equally true of the preclusion

clause in this case —because it is Evans’ contention that

harm is conclusively presumed in all Eighth Amendment

cases.

Whether it be described as a threshold requirement of

harm or as an inherent restriction of the remedy to cases

actually affected, the Eighth Amendment does embody

limitations inconsistent with Evans’ position in this case.

C. Evans’ Argument that the Harm and

Prejudice Requirement Should Be

Dispensed with Because of the

Nature of the Preclusion Clause

1. The Record is Not Incomplete or Flawed

Contrary to Evans’ assertions, the record is not incom-

plete concerning whether the existence of the preclusion

clause caused Evans’ self-destructive course of conduct.

The record contains voluminous evidence not only of the

objective facts concerning Evans’ course of conduct but

also of Evans’ motivation in pursuing that course of con-

duct. Brief for Petitioners at 3-7 and 25-30. The record also

contains the conclusions of the psychiatrist who examined

Evans for the purpose of determining his mental state and

motivation. (A. 27-28) Evans’ assertion that the State’s

position is based on nothing more than “amateur psycho-

logical speculation” not only flies in the face of the exten-

‘Likewise, Evans’ contention would mean that every Georgia capital

conviction or at least every death sentence imposed before Godfrey v.

Georgia, 446 U.S. 420 (1980), was due to be set aside because of that

decision, even if the aggravating circumstance condemned in Godfrey

was not applied and had no effect in that particular pre-Godfrey case.

8

sive objective evidence and Evans’ own sworn statements

at the time, but also conveniently ignores the expert profes-

sional psychiatrist’s determination that Evans was “sin-

cere in seeking the death penalty, preferring extinction to

a long prison sentence.” (A. 28) Accord, Evans v. State, 361

So. 2d 654, 662 (Ala. Cr. App. 1977) (“A careful reading of

this record convinces this Court... .[{that Evans] is sincere

in seeking the death sentence, preferring this course toa

long prison sentence.”), aff'd, 361 So. 2d 666 (Ala. 1978),

cert. denied, 440 U.S. 980 (1979).

The existence of the preclusion clause did not “flaw”

the record, as Evans suggests. Evans concedes that “the

Alabama preclusion clause did not absolutely bar a defend-

ant from presenting evidence of a lesser included offense.”

Brief for Respondent at 21.’ But he contends that the clause

'The opinion in Reed v, State, 407 So. 2d 162, 163 (Ala. 1981) (on

rehearing), contains a statement that because the preclusion clause did

not allow lesser offense jury instructions, “any offer of evidence thereof,

or any plea based thereon, would have been irrelevant and impermissi-

ble at trial under that statute.” To the extent that statement suggests

that a pre-Beck defendant could not present and have admitted lesser

offense evidence, then it is clearly wrong, as Evans’ concession

recognizes.

Because proof of a lesser included offense must by definition tend to

negate an element of the higher offense, see, ¢.g., Sansome v. United

States, 380 U.S. 343, 350 (1965); Payne v. State, 391 So, 2d 140, 148 (Ala.

Cr. App.), cert. denied, 391 So. 2d 146 (Ala. 1980), any lesser offense

evidence was relevant and admissible notwithstanding the preclusion

clause because such evidence would always — by definition — tend to

disprove an element of the capital offense. Reed v. State, 407 So. 2d at 164

(Maddox, J., concurring specially). Indisputable proof that a pre-Beck

capital defendant could introduce lesser offense evidence notwithstand-

ing the preclusion clause is the fact that most, including Beck himself,

Beck v. Alabama, 447 U.S. at 629-630, actually did.

It may be that the statement in the Reed opinion is simply “ambigu-

ous.” Reed v. State, 407 So. 2d at 165 (Maddox, J., concurring specially).

If not, then it is a clearly erroneous characterization of how the preclu-

sion clause operated, with the clarity of the error being underscored by

Evans’ concession here that the clause did not bar lesser offense evi-

dence. This Court is concerned not with how a state court characterizes

the operation of a state law but rather with how that law actually

operated, Corn Products Refining Co. v. Eddy, 249 U.S. 427, 432 (1919),

and this Court alone must make the final judgment concerning histori-

discouraged the presentation of such evidence and thereby

“flawed” the trial record. On p. 23 & n. 18 of his brief,

Evans argues that the preclusion clause discouraged pres-

entation of lesser offense evidence, because it would have

been “folly” for a defendant to present such evidence since

it would have “created a great risk of conviction for no

ostensible gain.” That argument should be rejected for

three reasons. First, the vast majority of pre-Beck capital

defendants, including Beck himself, Beck v. Alabama, 447

U.S. at 629-630, did present lesser offense evidence.

Second, instead of discouraging it, the existence of the

preclusion clause actually encowraged presentation of

lesser offense evidence in Evans’ unusual case. Brief for

Petitioners at 28-29. Third, it is absurd to suggest that

Evans was frightened out of presenting lesser offense evi-

dence by the prospect that it would enhance the risk that he

would be convicted of the capital offense since the alterna-

tive course of conduct he chose was to affirmatively seek

such a conviction.

Moreover, even if the preclusion clause had “flawed”

the trial record or caused it to be incomplete, it was incum-

bent upon Evans in this habeas proceeding to prove as

much by proving that there was lesser offense evidence and

that he would have presented it had the clause not existed.

Brief for Petitioners at 30-36.

2. This Court’s Decisions Do Not

Support Evans’ Position

The cases cited on pp. 21-24 of Evans’ brief do not

support his position that the harm and prejudice prerequi-

site should be dispensed with in this case. At most, those

cases are illustrative of the exception recognized in Brief

for Petitioners at 32: a showing of prejudice is not always

necessary where a state has denied or significantly

impaired a right which is specifically guaranteed in the

cal facts and their legal effect in constitutional disputes. Napue v.

Illinois, 360 U.S. 264, 271-272 (1959); Truaz v. Corrigan, 257 U.S. 312,

$24 (1921).

10

Bill of Rights or is recognized as encompassed within the

due process right to fair trial. Four of the cases involve

specific Sixth Amendment guarantees.’ While the other

two cases are due process cases, they both involve aspecific

right recognized as encompassed within the due process

right to fair trial.‘ Evans was not denied a specific Bill of

Rights guarantee nor was he denied a specific right recog-

nized as encompassed within the due process right to a fair

trial. Instead, Evans’ claim is that the mere existence of the

preclusion clause rendered his trial and conviction unfair.

That is a fundamental fairness due process claim which

requires proof of actual prejudice. See pp. 4-5, above, and

Brief for Petitioners at 30-33.

A second glaring distinction between the cases Evans

cites on pp. 21-24 of his brief and the present case is that

none of those cases were habeas corpus proceedings. The

significance of this distinction is illustrated by Holloway v.

Arkansas, 435 U.S. 475 (1978), and its subsequent explica-

tion in Cuyler v. Sullivan, 446 U.S. 335 (1980). While

*Holloway v. Arkansas, 435 U.S. 475 (1978), White v. Maryland, 373

U.S. 59 (1963), and Hamilton v. Alabama, 368 U.S. 52, 54 (1961), are

right to counsel cases. Davis v. Alaska, 415 U.S. 308 (1974) is a confron-

tation clause case.

Even when a specific Bill of Rights guarantee is denied, a showing

of prejudice is sometimes essential to establish infringement, see, ¢.g.,

Cuyler v. Sullivan, 446 U.S. 335, 350 (1980), or to warrant reversal once

infringement is established, see, e.g., United States v. Morrison, 449 U.S.

361 (1981). In Evans’ brief at 24 n. 14, he argues that the Morrison

decision applies only to “the most intrustive remedy of all, dismissal.”

Not so. Necessarily implicit in Morrison is a holding that because of the

lack of prejudice the Sixth Amendment violation in that case would not

merit reversal of a conviction either. Otherwise, this Court’s action in

reinstating the indictment would have been utterly futile.

*Webb v. Texas, 409 U.S. 95 (1972), involved denial of the right to

present testimony, which is essential to a fair trial, as the Sixth Amend-

ment right to compulsory process indicates, see, Washington v. Texas,

888 U.S. 14 (1967). Ferguson v. Georgia, 365 U.S. 570 (1961), involved

denial of the right to assistance of counsel in presenting the defendant's

own testimony, which is essential to a fair trial as the Sixth Amendment

right to counsel indicates, see, Gideon v. Wainwright, 372 U.S. 335

(1963).

11

Holloway contains some language favorable to Evans’ posi-

tion, that language is best understood as a “prophylactic

gloss,” Holloway v. Arkansas, 435 U.S. at 493 (dissenting

opinion of Powell, J., joined by Blackmun and Rehnquist,

J.J.), designed to ensure that a defendant is permitted to

demonstrate prior to trial, if he offers to do so, the prejudice

which will flow from his attorney’s conflict of interest. As

the subsequent decision in Cuyler v. Sullivan, 446 U.S. 335,

350 (1980) (majority opinion by Powell, J.), explains, when

a conflict of interest claim is not made until a federal

habeas proceeding, the prophylactic rationale of Holloway

does not apply and the defendant “must establish that an

actual conflict of interest adversely affected his lawyer’s

performance.” Since Evans did not request an opportunity

to demonstrate prior to trial how the existence of the prec-

lusion clause would prejudice him, he must now demon-

strate that it actually did adversely affect him.

Far from supporting Evans’ contention that post hoc

determinations of prejudice are not feasible, this Court's

decisions establish the contrary. For example, United

States v. Marion, 404 U.S. 307, 324-326 (1971), held that

“the real possibility of prejudice” inherent in a 38-month

delay was insufficient to establish a due process violation

based on pre-indictment delay, and required that ‘ ub-

stantial prejudice” must be proven. Such a requirement is

necessarily premised on the feasibility of a post hoc inquiry

into the existence and extent of prejudice. Another exam-

ple is Kentucky v. Whorton, 441 U.S. 786, 789-790 (1979)

(whether failure to instruct on presumption of innocence

deprived the defendant of a fair trial depends on a post hoc

evaluation of “the totality of the circumstances” to gauge

prejudice.)

Nor are inquiries into prejudice precluded when sub-

jective mental states are involved and the issue depends on

questions of motivation or impact. Smith v. Phillips, 50

U.S.L.W. 4190 (Jan. 25, 1982), sanctions the feasibility of a

post-trial inquiry into whether a juror placed in a poten-

tially compromising position was actually biased, an

inquiry into the juror’s mental state at the time of the

indiscretion. Similarly, the “cause” part of the “cause and

12

prejudice” exception to Wainwright v. Sykes, 483 U.S. 72

(1977), is dependent on a post hoc determination of the

cause oi inaction, a determination that will virtually

always delve into questions of motivation. Finally, in hold-

ing that Bruton error was harmless in Harrington v. Cali-

fornia, 395 U.S. 250, 254 (1969), this Court noted that “[ojur

judgment must be based on our own reading of the record

and on what seems to us to have been the probable impact

of the two confessions on the minds of an average jury.”

Likewise, in this case this Court’s judgment can and should

be based on its own reading of the record and on what

seems to have been the probable impact (or lack of impact)

of the preclusion clause or Evans’ mind.'°

3. Evans Has Never Attempted to Make the

Record More Complete and He is Not

Asking for an Opportunity To Do So Now

Evans’ contention that the record is incomplete or

flawed is belied by the fact that Evans has never sought to

make the record more complete or to correct what he says

are its flaws by offering evidence that the preclusion clause

affected his course of action. Since this is a habeas corpus

case Evans had ample opportunity to present any evidence

he wanted in the district court. Indeed, a hearing was held

on the habeas petition and Evans did call a witness to

testify on another issue, but Evans offered no evidence at

all that the existence of the preclusion clause had affected

him in any way. Brief for Petitioners at 9. Evans himself

did not even testify that the preclusion clause had influ-

enced him.

Since the district court proceedings occurred before

the Beck decision, Evans might have argued in the court of

In Harrington this Court was forced to focus its impact query on “an

average jury” rather than on the particular jurors who sat in that case,

because “{w Je of course do not know the jurors who sat.” 395 U.S. at 254.

In this case, the focus should be on Evans in particular rather than on an

average defendant, because we of course do know Evans. We know him

through the abundant evidence of his conduct, through his many sworn

statements, and through the psychiatrist's evaluation of him.

13

appeals that he was entitled to a new hearing so that he

could have another opportunity to present evidence of prej-

udice. Yet he chose not to ask that court to remand the case

for such a hearing, and he conspicuously has not asked this

Court to do so either."

Instead, in spite of this Court’s admonition in Beck v.

Washington, 369 U.S. 541, 558 (1962), that unfairness must

be shown “not as a matter of speculation but as a demon-

strable reality,” Evans has chosen to stake his position on

speculative conjecture such as his guess that “there might

have been other evidence that defense counsel could have

presented.” Brief for Respondent at 29. That Evans prefers

pure conjecture instead of a new opportunity to present

evidence is telling. Evans has not asked for a new habeas

hearing because he knows that since the mere existence of

the preclusion clause did not affect him in any way, any-

thing added to the record would not be favorable to him.

D. Evans’ Argument thai He was Harmed

And Prejudiced By the Preclusion Clause

1. Evans’ “Instinctive Self-Preservation”

Argument is Frivolous

On pp. 26-29 of his brief, Evans contends that the

record does contain evidence that would have warranted a

lesser offense instruction had it not been for the preclusion

clause. Evans points to his grand jury statements that: he

The State's position is that Evans is not entitled to a new hearing. His

habeas petition anticipated the Beck decision (A. 49-50), and he was free

to offer any evidence of harm and prejudice at the hearing on it. Prior to

that hearing, the district court ordered Evans to amend his petition “to

aver each and every ground that [he] can conceivably think of that can be

asserted under the conditions prevailing in this factual situation” (A.

55), but Evans still did not offer any proof that the preclusion clause had

harmed or prejudiced him. Cf., Wong Doo v. United States, 265 U.S. 239

(1924) (Where “[tJhe petitioner had full opportunity to offer proof of [a

claim] at the hearing on the first petition,” to reserve that proof for use in

a later petition “was to make an abusive use of the writ of habeas

corpus.”).

14

never wanted to hurt anyone during a robbery unless he

had to (A. 21); he thought the robbery victim, Mr. Nassar,

was going for a gun and it had come down to a choice

between Nassar’s life and his (A. 19); and once he was

confronted with that choice, well “that’s pure instinct.

That’s self-preservation. I’m going to fire.” (A. 19) Evans’

argument that those statements create an intent to kill

issue and justify a non-capital felony murder instruction is

utter nonsense.

It is undisputed that Evans went into the pawn shop

intending to kill Nassar if Nassar tried to defend himself.

In the same answer where he made the instinctive self-

preservation remarks, Evans told the grand jury that, “I

was going to shoot him if he reached for a — a firearm,

yeah.” (A. 19) Ritter testified at trial that: “We knew we

might have to kill somebody during any robbery. We had

discussed it before. If anybody went for a gun, that’s what

was going to happen.” (Tr. 220) Evans testified that Nassar

was not the first man he had killed (A. 21), and that he felt

no remorse about the killing (A. 19, 42). Evans not only

swore that he fully understood the consequences of his act

when he shot Nassar (A. 19), but also swore that he would

kill again in the same situation: “If I had to do it again,

yeah, without a doubt.” (A. 21)!”

So, Evans’ “instinctive self-preservation” argument

reduces itself to the absurd proposition that there is no

intent to kill if a robber deliberately murders the victim

because he thinks the victim is trying to get a gun to defend

himself. That argument should be rejected as frivolous.

See, e.g., Henson v. State, 247 Ala. 125, 22 So. 2d 905 (1945)

(claim of self-defense unavailable to one not free from fault

in bringing about the difficulty); Raines v. State, 342 So. 2d

1348, 1357 (Ala. Cr. App. 1977) (“This has to be the most

2Even if Evans had not formed the intent to kill until Nassar dropped

down and started crawling away, under Alabama law premeditated

intent to kill may be formed “the instant before the killing,” Daughdrill

v. State, 113 Ala. 7, 21 So. 378, 386 (1897), and need exist “only for a

moment or instant of time,” Caldwell v. State, 203 Ala. 412, 84 So. 272,

276-277 (1919). Evans has never contended that the gun fired accidently.

15

novel claim ever made in a robbery-murder charge.”). If

not rejected as frivolous, then it presents a question of state

law that should be certified to the Alabama Supreme

Court. Brief for Petitioners at 43.'*

2. Evans’ Parole Eligibility Argument

Has No Basis in Fact

Evans argues on pp. 25-26 of his brief that had a lesser

included offense option with attendant parole possibility

been available, “Evans may well have made a very differ-

ent choice as to how to proceed.” Such unsupported specu-

lation should be rejected for five reasons. First, it ignores

the fact that there simply was no lesser offense evidence to

present and therefore no possibility of presenting any.

Second, even if Evans could somehow have convinced

the jury in this case that he lacked intent to kill, there was

no chance at all that he ever would have gotten out of

prison. The only lesser included offense possibility was a

conviction for both felony murder and robbery, which

would have meant one life sentence plus an additional

sentence of ten years to life. Petitioner’s Brief at 28-29 n. 23.

Added to those two sentences would have been another

Alabama sentence of 10 years to life for an unrelated non-

capital robbery Evans had committed in Mobile after he

18On pp. 14 and 29 of his brief, Evans speculates on what would have

happened if his instinctive self-preservation remarks “had been deve-

loped by competent counsel and presented at trial.” The implication that

Evans did not have competent counsel ignores the fact that his two

experienced trial counsel (Tr. 6, 38, 49, 235-236) repeatedly urged him in

vain not to follow the course of action that he did. (Tr. 72-73; A. 41-42)

Evans v. State, 361 So. 2d 654, 661-662 (Ala. Cr. App. 1977) (“This Court

specifically finds that both Evans and Ritter were fully, fairly, and

thoroughly represented by these attorneys.”).

In any event, no ethical attorney could have “developed” and pres-

ented evidence contrary to Evans’ own persistent admissions that he

intentionally killed Nassar, because an attorney may not participate in

the creation of evidence “when he knows or it is obvious that the evidence

is false,” nor may he present false evidence. Alabama Canons of Profes-

sional Responsibility, DR 7-102(A)(4) and (A)(5).

16

robbed and murdered Nassar, and to which he had already

pleaded guilty. (Tr. 69-71, 304-305, 326) In addition, Evans’

Alabama sentences are only part of the sentences he would

have received if Alabama had not sentenced him to death.

During his cross-country crime spree Evans committed

more than three dozen violent felonies in seven different

states. (A. 39; Tr. 288-292, 321-330) After he was appre-

hended, Alabama authorities received warrants from at

least four other states charging Evans with numerous

counts of burglary, armed robbery, and kidnapping. (Tr.

233-234, 348-370) Those states and others indicated that

they would prosecute Evans if he was not sentenced to

death in Alabama. (Tr. 233-234) And of course Evans wasa

parole violator when the spree began. (Tr. 231-232, 238,

$21) So, regardless of the verdict in this case there was

never any chance that Evans would ever be released.

Third, even if Evans somehow could have been

released after serving forty or fifty years, a tiny portion of

all the many sentences he was due to receive, that would not

have changed his course of conduct. Evans not only pre-

ferred death to the absence of any possibility of parole, he

also preferred death to a long prison sentence. (A. 28);

Evans v. State, 361 So. 2d 654, 662 (Ala. Cr. App. 1977).

Fourth, Evans’ contention that he might have acted

differently if the preclusion clause had not foreclosed the

possibility of parole fails to explain either the thrasonic

nature of his behavior or the fact that he began his self-

destructive legal strategy before he knew of the preclusion

clause. Petitioner’s Brief at 25-26.

Fifth, Evans’ unsupported speculation about what

might have happened if the preclusion clause had not

existed is just that — unsupported speculation. Evans did

not testify that he would have acted any differently, nor is

he asking for another opportunity to present evidence on

the issue.

8. The Burden of Proof is on Evans

Chapman v. California, 386 U.S. 18 (1967), held that

where a constitutional violation is established the burden is

17

on the state to prove beyond a reasonable doubt the absence

of harm. That rule is not applicable here because a consti-

tutional violation has not been established.4 Since harm

and prejudice is an element of Evans’ fundamental fair-

ness due process claim, the burden is on him to prove harm

and prejudice, Petitioners Brief at 30-33, especially since

this is a habeas corpus case. Jd., at 35-36; Rose v. Lundy, 50

U.S.L.W. 4272, 4281-4282 (March 8, 1982) (dissenting

opinion of Stevens, J.) (habeas corpus should not extend to

any constitutional error, even that harmful enough to

require reversal on direct appex!, unless the error ren-

dered the trial fundamentally unfair).

In any event, even if the burden were somehow on the

State, the record in this case proves, even beyond a reason-

able doubt, that the preclusion clause did not harm or

prejudice Evans.

II. EVANS’ ARGUMENTS CONCERNING

THE EFFECT OF HIS GUILTY PLEA

SHOULD BE REJECTED

Evans’ guilty plea is an independently adequate reason

that his conviction is valid. Petitioner’s Brief at 36-42. In

Lane v. State, No. 80-803 (Ala., Feb. 5, 1982), pp. 1la-6a,

infra, the Alabama Supreme Court held that a guilty plea

to a capital charge, which must still be submitted to a jury

pursuant to Prothro v. State, 370 So. 2d 740 (Ala. Cr. App.

1979), is effective under Alabama law to waive all non-

jurisdictional defects including any involving the

preclusion clause. While the capital conviction in Lane did

not result in a death sentence, the decision does

authoritatively demonstrate that the court of appeals and

“Beck v. Alabama, 447 U.S. 625 (1980), establishes a constitutional

violation when lesser offense instructions which are supported by the

evidence at trial are not given, but it did not hold that the mere existence

of the preclusion clause was a constitutional violation in a case in which

the clause did not apply.

18

Evans are wrong — a guilty plea to a capital charge is

given waiver effect under Alabama law."®

Evans’ argument that this case proceeded “just as

though Evans had not pleaded not guilty,” ignores the facts

that a written guilty plea was admitted into evidence (A.

33-87; Tr. 252), and the Alabama Supreme Court held that

the guilty plea rendered harmless and waived a defect in

the jury instructions. Ritter v. State, 375 So. 2d 270, 276

(Ala. 1979). Nor is the fact that the Alabama appellate

courts considered various constitutional issues in this case

inconsistent with waiver of non-jurisdictional defects.

Petitioner’s Brief at 39 n. 34.

III, EVANS’ SENTENCE IS VALID

Evans was not sentenced under a mandatory death

penalty statute. See, p. 1, above. Even assuming that the

jury verdict form requirement unconstitutionality tended

wo motivate the trial judge to impose a sentence of death, see

pp. 1-2, above, Evans’ death sentence is still valid because

that error, if any, was harmless beyond a reasonable doubt

in this case.

At every stage of the proceedings, Evans sought the

death penalty. He expressed his desire to be sentenced to

death even before he was captured (A. 20-22); to law

‘6Footnote 1 of the Lane opinion, p. 2a, infra, reconciles that decision

with Ritter v. State, 403 So. 2d 154 (Ala.), vacated and remanded, 102 8.

Ct. 876, on remand, No. 77-798 (Ala. 1981), certiorari pending, No. 81-

1600 (U.S., filed Feb. 27, 1982), by explaining that the Alabama

Supreme Court is divided over whether a guilty plea waives all non-

jurisdictional defects in a death case. The court is not divided on whether

the state law waiver effect of a guilty plea in a capital case varies

depending on the penalty — it does not. Instead, the court is divided on

the federal issue of whether it violates the Constitution to give any guilty

plea waiver effect in a death sentence case. That is why footnote 1 of the

Lane opinion emphasizes that the Alabama Supreme Court's Ritter

decision “was based on federal constitutional grounds.”

The State’s position is that since a guilty plea to a capital charge

waives all non-jurisdictional defects as a matter of state law regardless

of the penalty imposed, that waiver is constitutionally effective in both

death and non-death cases.

19

enforcement officers after his arrest (Tr. 291); to the grand

jury (A. 17, 20); to the trial jury (A. 38); and to the

sentencing judge (A. 30, 38). After conducting a sentence

hearing and finding that the aggravating circumstances

“far outweigh{ed]” any mitigating circumstances, the

judge complied with Evans’ request that he be sentenced to

death. (Tr. 241-242) Any other sentence was inconceivable,

not only because Evans wanted the death penalty but also

because he was remorseless (A. 41-42); he had killed before

(A. 21, Tr. 232), and he said he would kill again(A. 21, 38). If

the jury verdict form requirement was error, whatever

effect it may have had on a judge’s sentencing decision in

some other case, it was harmless beyond a reasonable doubt

in this unusual case. See p. 12, n. 10, above.

IV. THE CERTIFICATION QUESTIONS

If this Court agrees with the State that Evans’

instinctive self-preservation argument is frivolous, see pp.

13-15, above, then it is clear that Evans would not have

received any lesser included offense instructions

regardless of the preclusion clause, and the first state law

question discussed in Brief for Petitioners at 43 need not be

certified. If this Court concludes that Evans’ conviction is

valid irrespective of what effect his guilty plea had, see pp.

17-18, above, then the second state law question discussed in

Brief for Petitioners at 43 need not be certified. See Brief

for Petitioners at 44 n. 37. Since Evans has apparently

abandoned any state court claim he may have had that he

was entitled to have his conviction or sentence invalidated

as a matter of Alabama law, the third state law question,

Brief for Petitioners at 44, clearly no longer needs be

certified.

Evans’ argument that it was inconsistent for the State

to move for certification after it had conceded that he has

no state remedies left to exhaust, Brief for Respondent at

87-39, is premised on the proposition that once a habeas

petitioner has exhausted or forfeited his state remedies no

important, unresolved state law questions can arise in a

20

subsequent federal habeas proceeding. This case

illustrates that that proposition is absurd. The fact that a

habeas petitioner can no longer have his federal claims

ajudicated in state court does not in any way foreclose

certification of state law issues or diminish its

desirability."

CONCLUSION

This Court should reject Evans’ arguments and

reverse the court of appeals.

Respectfully submitted,

CHARLES A. GRADDICK

Attorney General of Alabama

EDWARD E. CARNES

Assistant Attorney General

of Alabama

(Counsel of Record)

SUSAN BETH FARMER

Assistant Attorney General

of Alabama

Dated: March 12, 1982

Evans’ cynicism above the motives of the attorneys for the State in

moving for certification, Brief for Respondent at 37-39, is not only

unjustified but is also particularly unbecoming since the district court

found that it was Evans’ attorneys — not the attorneys for the State —

who had “trifled with the law” and engaged in actions that were

“extremely borderline at best on ethical practice.” (R. 44-48)

la

APPENDIX A

February 5, 1982

THE STATE OF ALABAMA

JUDICIAL DEPARTMENT

THE SUPREME COURT OF ALABAMA

OCTOBER TERM, 1981-82

Ex parte State of Alabama

Petition for Writ of Certiorari

to the Court of Criminal Appeals

(Re: Homer Lawrence Lane

v.

State of Alabama)

80-803

MADDOX, JUSTICE.

The sole issue in this case is whether a defendant who

entered a plea of guilty to a capital offense, and who was

sentenced to life without parole, is entitled to withdraw

that plea of guilty and obtain a new trial in light of Beck v.

Alabama, 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2882

(1980); on remand, Beck v. State, 396 So. 2d 645 (Ala. 1981)

(wherein the Court held that the constitutionally infirm

clause in Alabama’s death penalty statute, which pre-

cluded trial judges from giving lesser included offense

instructions in capital cases, could be severed from the

death penalty statute).

When the state filed its petition for certiorari in this

Court, there was pending here a case which presented the

same issue. The case was Graham v. State, 403 So. 2d 275

(Ala. Cr. App. 1980); cert. quashed 403 So. 2d 286 (Ala.

1981). In Graham, the Court of Criminal Appeals upheld

the conviction. In this case, a majority of the Court of Crimi-

nal Appeals reversed Lane’s conviction on “mandate of the

Supreme Court of Alabama in Ritter v. State[403 So. 2d 154

2a

(Ala. 1981)] and authorities therein cited, and Ricardo

Cook v. State, MS. 6 Div. 461, this day decided. .. .”

In Ricardo Cook v. State, [MS. 6 Div. 551, June 23,

1981], __ So. 2d —___ (1981), a majority of the judges of the

Court of Criminal Appeals were of the opinion that “...

every pre-Beck death case must be reversed, regardless of

the lack of evidence on lesser offenses.” In reaching this

conclusion, the Court of Criminal Appeals has misapplied

the law announced by this Court in Beck and Ritter v. State,

403 So. 2d 154 (Ala. 1981), and has failed to apply the

principles of law set forth in Graham v. State, 403 So. 2d 275

(Ala. Cr. App. 1980), cert. quashed 403 So. 2d 286 (Ala.

1981).

This Court did not write an opinion in Graham, but the

rationale upon which the judgment to quash the writ was

based in Graham was that a plea of guilty voluntarily made

in a case wherein the death penalty was not imposed waives

all non-jurisdictional defects.’

What was the effect of Lane’s plea of guilty which was

voluntarily made and upon which his judgment of convic-

tion was based and upon which he was sentenced to life

imprisonment without parole?

One of the most basic principles of the criminal law

was stated in Boykin v. Alabama, 395 U.S. 238, 89 S. Ct.

1709 23 L. Ed. 2d 274 (1969), where the Supreme Court

opined:

There is disagreement on this Court on whether a plea of guilty ina

‘capital case when the death penalty is imposed also waives all non-

jurisdictional defects. See dissenting opinion in Ritter v, State, 403 So. 2d

at p. 155. The Supreme Court of the United States has agreed to review

the Ritter case. Certiorari was granted by the United States Supreme

Court on October 15, 1981, 50 USLW 3277; and that case was remanded

to us for further consideration in light of Reed v. State, on October 26,

1981; answer of this Court on remand from the United States Supreme

Court dated December 11, 1981, held that the decision in Ritter was

based on federal constitutional grounds. __. So, 2d —__. (19811).

3a

“... A plea of guilty is more than a confession which

admits that the accused did various acts; it is itself a

conviction; nothing remains but to give judgment

and determine punishment. .. .”

395 U.S. 238, 242, 23 L. Ed. 2d 274, 279.

It is universally held that a voluntary plea of guilty

waives all non-jurisdictional defects. Lancaster v. State,

862 So. 2d 271 (Ala. Crim. App. 1978), cert. den. 362 So. 2d

272 (1978); Franklin v. United States, 589 F. 2d 192, 194,

195 (5th Cir. 1979), cert. den. 441 U.S. 950, 99S. Ct. 2177, 60

L. Ed. 2d 1055.

The factual setting in this case is not dissimilar to the

fact situation in Brady v. United States, 397 U.S. 742, 90S.

Ct. 1468, 25 L. Ed. 2d 747 (1970). Brady involved the Fed-

eral Kidnapping Statute which provided that only a jury

could set a death penalty. Brady, charged under the Act,

sought to avoid the death penalty, first, by waiving trial by

jury and, when that was disallowed, by pleading guilty.

The Supreme Court of the United States, a few years later,

in United States v. Jackson, 390 U.S. 570, 88 S. Ct. 1209, 20

L. Ed. ‘2d 188 (1968), invalidated and severed the death

penalty provision from the Federal Kidnapping Statute on

the grounds that it tended to coerce defendants into waiv-

ing trial by jury or to plead guilty. When Brady was sent-

enced under the Federal Kidnapping Statute upon his plea

of guilty, the Supreme Court of the United States had not

invalidated the death penalty provision from the statute.

The Court refused to set aside Brady’s conviction. The

Court opined:

“It may be that Brady, faced with a strong case

against him and recognizing that his chances for

acquittal were slight, preferred to plead guilty and

thus limit the penalty to life imprisonment rather

than toelect ajury trial which could result ina death

penalty. But even if we assume that Brady would not

have pleaded guilty except for the death penalty

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provision of [the federal kidnapping statute], this

assumption merely identifies the penalty provision

as a ‘but for’ cause of his plea. That the statute

caused the plea in this sense does not necessarily

prove that the plea was coerced and invalid as an

involuntary act.”

397 U.S. 742, 749-750, 25 L. Ed. 2d 747, 757.

The Court added:

“It is true that Brady’s counsel advised him that

[the federal kidnapping statute] empowered the

jury to impose the death penalty and that nine years

later in United States v. Jackson, supra, the Court

held that the jury had no such power as long as the

judge could impose only a lesser penalty if trial was

to the court and there was a plea of guilty. But these

facts do not require us to set aside Brady’s

conviction.

“Often the decision to plead guilty is heavily

influenced by the defendant’s appraisal of the prose-

cution’s case against him and by the apparent likeli-

hood of securing leniency should a guilty plea be

offered and accepted. Considerations like these fre-

quently present imponderable questions for which

there are no certain answers; judgments may be

made that in the light of later events seem improvi-

dent, although they were perfectly sensible at the

time. The rule that a plea must be intelligently made

to be valid does not require that a plea be vulnerable

to later attack if the defendant did not correctly

assess every relevant factor entering into his deci-

sion. A defendant is not entitled to withdraw his plea

merely because he discovers long after the plea has

been accepted that his calculus misapprehended the

quality of the State’s case or the likely penalties

attached to alternative courses of action. More par-

ticularly, absent misrepresentation or other imper-

missible conduct by state agents, cf., Von Moltke v.

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Gillies, 332 U.S. 708, 92 L. Ed. 309, 68 S. Ct. 376

(1948), a voluntary plea of guilty intelligently made

in the light of the then applicable law does not

become vulnerable because later judicial decisions

indicate that the plea rested on a faulty premise. A

plea of guilty triggered by the expectations of a

competently counseled defendant that the State will

have a strong case against him is not subject to later

attack because the defendant’s lawyer correctly

advised him with respect to the then existing law as

to possible penalties but later pronouncements of

the courts, as in this case, hold that the maximum

penalty for the crime in question was less than was

reasonably assumed at the time the plea was

entered.

“The fact that Brady did not anticipate United

States v. Jackson, supra, does not impugn the truth

or reliability of his plea. We find no requirement in

the Constitution that a defendant must be permitted

to disown his solemn admissions in open court that

he committed the act with which he is charged

simply because it later develops that the state would

have had a weaker case than the defendant had

thought or that the maximum penalty then assumed

applicable has been held inapplicable in subsequent

judicial decisions

897 U.S. 742, 756-757, 25 L. Ed. 2d 747, 761.

In reaching the conclusion we reach in this case, we

have considered the fact that the record indicates that Lane

contended in his first petition for writ of error coram nobis

that he had a defense of alibi. Lane v. State, 7 Div. 700(Ala.

Crim. App. 1979), cert. den. 386 So. 2d 216 (Ala. 1979).

The decision of the Court of Criminal Appeals conflicts

with this Court’s decision in Graham v. State, 403 So. 2d 275

(Ala. Cr. App. 1980), cert. quashed 403 So. 2d 286 (Ala.

1981). It is due to be reversed and the cause remanded to

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that court for further proceedings not inconsistent with.

this opinion.

REVERSED AND REMANDED.

Tobert, C. J., Faulkner, Jones, Almon, Shores, Embry,

Beatty and Adams, JJ., concur.