# Petitioners Reply Brief — Hopper v. Evans

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2011%3A8

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Reply Brief
- **Published:** January 1, 1982
- **Citation:** 456 U.S. 605

## Text

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

4a

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.

5a

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

6a

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_2011%3A8. Public record. Not legal advice.