Petition — Stoner v. Alabama

82-798

Office - Supreme Court. US

FILED

NOV 10 i992

ALEXANDER L. STEVAS

——ae

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

NO.

JESSE BENJAMIN STONER,

Petitioner,

v.

STATE OF ALABAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

ALABAMA COURT OF CRIMINAL APPEALS AND TO

THE SUPREME COURT OF THE STATE OF ALABAMA

FLEMING LEE

300 independence Avenue, S.E.

Washington, D.C. 20003

(202) 546-5611

Attorney for Petitioner

QUESTIONS PRESENTED

Whether the due process rights of petitioner under

the Fourteenth Amendment to the United States Consti-

tution were violated by the State of Alabama's highly

prejudicial delay of over nineteen years before indicting

him for his alleged crime - a delay for which the State can

give no reason - substantially prejudicing petitioner by

delaying his indictment until after the death of four of his

witnesses and the loss of documents which would have

proven his innocence.

Whether petitioner's rights to equal protection were

violated when the Aiabama Court of Criminal Appeals

ruled that the three year statute of limitations did not bar

his prosecution when he was indicted in 1977 for acrime

he allegedly committed in 1958, but impliedly held that

the prosecution of a person who committed the same

crime since this Court outlawed the Alabama death

penalty in 1972 would be barred by that statute of

limitations.

TABLE OF CONTENTS

Question Presented

Tabie of Cases

Opinion Below

Jurisdiction

Constitutional Provision and Rules Involved

Statement of the Case

Reasons for granting the Writ

Conclusion

Appendix

Order of Supreme Court of Alabama denying

certiorari with only one dissenting opin-

ion and no majority opinion

Decision and Opinion of Alabama Court of

Criminal Appeals

Stay from Alabama Court of Criminal Appeals

to allow filing of petition for writ of cer-

tiorari with the United States Supreme

Court.

Order Extending Time To File Petition For Writ

Of Certiorari to and including November

11, 1982 by Honorable Lewis F. Powell,

Associate Justice of the Supreme Court

of the United States.

Motion for Rehearing Denied

Page

i.

iii. & iiii.

1&2

la

Table of Cases

Page

Beck v. State, 396 So. 2nd 645 (1980) 19

Donaidson v. Sack, 265 So. 2nd 499 (Fila. 1972) 20

Ex parte, McCrary, 22 Ala. 65. 72 19

Ex parte, Stoner v. State, 418 So. 2nd 184 (Ala. 2

1982)

Furman v. Georgia, 408 U.S. 238 1972 18,19,20

22,24

Lee v. State, 13 So. 2nd 583 (Ala. App. 1943) 19

Manucy v. Wadsworth, 293 So. 2nd 345 (Fla. 20,21

1974)

Mills v. Habluetzel, 102 S. Ct. 1549 (1982) 23

Mitchell v. State, 25 So. 2nd 73 (1946) 23

People v. Gulley, (1980) 404 N.E. 2nd 1077, 83 Ill. 9,10,41

App. 3rd 1066

People v. Lawson, 367 N.E. 2nd 1244 7,10

Reino v. State, Fla. 352 So. 2nd 853 (1977) 20,21,22

G.D. Searle & Co. v. Cohn, 102 S. Ct. 1137 (1982) 23

State v. Hey, 269 S.E. 2nd 394 7,9,11

Stoner v. State, 418 So. 2nd 171 (Ala. Crim. App.

1982)

United States v. Agurs, 427 U.S. 97 112-113 15,17

(1976)

United States v. Alderman, 423 F. Supp. 847 11

United States v. Barket, 532 F. 2nd 189 (8th Cir.

1975)

United States v. Brand, 556 F. 2nd 1312 7,10

United States v. Brown, 422 A. 2nd 1281 (D.C. 22

App. 1980)

United States v. Cordova, 537 F. 2nd 1073 7,11

itii.

United States v. Lovasco, 431 U.S. 783 (1977) 6,9,11,2a

U.S. v. Marion, 404 U.S. 307 (1971) 6,9,11

16,2a

United States v. Mills, 641 F. 2nd 785 (9th Cir. 12

1981)

United States v. Provenzano, 423 F. Supp. 62 22,23

(S.D.N.Y. 1976) affirmed, 556 F. 2nd 562

United States v. Rice, 550 F. 2nd 1364 7,11

United States v. Richburg, 478 F. Supp. 535 (M.D. 9

Tenn. 1979)

United States v. Townley, 665 F. 2nd 579 (1982) 7,9,10

United States v. Valenzuela-Bernal, 102 S. Ct. 6,12,13

3440 (1982) 16,17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1982

JESSE BENJAMIN STONER,

Petitioner,

Vv.

STATE OF ALABMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE ALABAMA COURT OF CRIMINAL APPEALS AND

TO THE SUPREME COURT OF THE STATE OF ALAMAMA

Petitioner Jesse Benjamin Stoner respectfully prays

that a writ of certiorari issue to the Alabama Court of

Criminal Appeals in order that this honorable Court

might review the decision in this case rendered in the

court below.

OPINIONS BELOW

The opinion of the Alabama Court of Criminal

Appeals (Appendix, infra) is reported at STONER v.

STATE, 418 So.2d 171 (Ala.Crim.App . 1982).

When the Supreme Court of Alabama denied certio-

rari on August 13, 1982, there was no majority opinion

rendered and only one dissenting opinion by Justice

Faulkner of that court. Said dissent (Appendix, infra) is

reported at EX PARTE STONER, 418 So.2d 184 (Ala.

1982.)

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. 1257 (3) and Rule 17 (b) and (c) of the Rules of

this Court. On October 1, 1982 the Honorable Justice

Lewis F. Powell, Associate Justice of the United States

Supreme Court, signed an order extending time to file

petition for writ of certiorari up to and including November

11, 1982 (Appendix, infra).

CONSTITUTIONAL PROVISIONS INVOLVED

Section 1, the Fourteenth Amendment to the

United States Constitution

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the state wherein they reside. No

state shall make or enforce any jaw which shall abridge

the privileges or immunities of citizens of the United

States; nor shall any state deprive any person of life,

liberty, or property without due process of law; nor deny

to any person within its jurisdiction the equal protection

of the law.

3

STATEMENT OF THE CASE

Proceedings Below

The indictment against petitioner charged that he

“set off or exploded dynamite or other explosives in,

under or dangerously near to” an inhabited dwelling. No

one was killed or injured on account of this explosion.

Your petitioner is the only person to have ever been

prosecuted in connection with this incident. After a jury

trial in the Circuit Court of Jefferson County, Alabama,

he was convicted and sentenced to ten years in prison.

The indictment against petitioner was returned on

the 26th day of September, 1977, over nineteen years

after the date of the offense which occurred on the 29th

day of June, 1958. (Tr. 93) The investigation of petition-

er's possible involvement terminated in July of 1958. (Tr.

274) During that period of 19% years, no new evidence

pertaining to petitioner or this case was ever brought

forward.

Prior to trial the trial court overruled petitioner's plea

in bar based on the prejudicial pre-indictment delay of

19% years that violated the due process rights of petitioner.

The trial court also erred in overruling petitioner's

plea to the statute of limitations.

After conviction the trial court released petitioner on

a $20,000.” bail bond and suspended his sentence pend-

ing appeal. (Tr. 455) Petitioner then filed a motion for

new trial or judgment of acquittal (Tr. 514) and later

supplemented that motion. (Tr. 519) The motion for a

new trial as supplemented was overruled by the trial

court. (Tr. 521 & 522)

On July 7, 1981 petitioner filed his brief and argu-

ment in the Alabama Court of Criminal Appeals and on

4

April 20, 1982 that appellate court affirmed petitioner's

judgment of conviction. Said Court rejected all of peti-

tioner’s grounds for reversa! based on grounds of the

Fourteenth Amendment. Since that court is Alabama's

highest court of appeals by right of law in criminal cases,

petitioner timely filed his application for rehearing which

was denied on May 18, 1982.

On May 28, 1982 petitioner filed a petition for writ of

certiorari with the Supreme Court of Alabama which was

denied on August 13, 1982. There was no majority opin-

ion, but Justice Faulkner wrote a dissenting opinion in

favor of petitioner (Appendix, infra).

On August 20, 1982 the Alabama Court of Criminal

Appeals granted a stay of sixty (60) days from August 13,

1982 to allow petitioner to file a petition for writ of certio-

rari in the United Stated Supreme Court (Appendix,

infra). On October 1, 1982 Honorable Lewis F. Powell,

Jr., Associate Justice of this honorable Court issued an

order extending time to file petition for writ of certiorari

up to and including November 11, 1982 (Appendix,

infra).

Statement of Facts

The State’s main witness, Lt. Tom Cook, retired,

testified that he met with petitioner on June 21, 1958 in

Birmingham, Alabama along with another police detec-

tive, Captain Pattie of the Birmingham Police Depart-

ment, now deceased, and an informer, Hugh Morris, ina

Studebaker owned by Mr. Morris. (Tr. 249-258) Sgt.

Cook testified that unidentified people left it up to him

and Captain Pattie to select a responsible person to

arrange for the bombing of Rev. Shuttlesworth's church,

but they did not have the money to pay for a bombing. Lt.

5

Cook said that he hoped for a total destruction of the

church which would persuade Rev. Shuttlesworth to

leave Birmingham and go up “north where he belonged.”

(Tr. 257)

Cook and Pattie talked about paying petitioner

$2,000.°°, but there was no meeting of the minds and no

money was ever paid to petitioner, according to the tes-

timony of Lt. Cook. (Tr. 227) An attempt to bomb the

church was made a week later on June 29, 1958. On July

12 the same four individuals met again at the same place

in the previously mentioned car. This second meeting on

July 12, 1958 was observed by other Birmingham police

officers, F.B.|. agents and by the late Judge E.C. Watson

of the Circuit Court of Jefferson County, who was an

Assistant Solicitor in 1958. No arrest was made.

Lt. (then Sgt.) Cook testified that the last fruitful

investigation that had been conducted in the case was

that second meeting with petitioner on July 12, 1958. (Tr.

228-277) Sgt. Cook testified that no arrest was made until

September of 1977, despite the general arrest powers of

all officers involved. (Tr. 275) All of the conversations Lt.

Cook had with petitioner were in regard to bombing Rev.

Shuttlesworth’'s church. Yet, petitioner was not indicted

for bombing that church, but for setting off explosives

near an inhabited dwelling in the proximity of the church.

Rev. Fred Shuttlesworth, who was pastor of the

church at the time, testified that during 1958 Birmingham

police officers frequently attended meetings in his church

and that he protested to no avail and eventually had a

lawsuit about it. (Tr. 286) He said the lawsuit did not end

such harassment by the police and the police would

record the meetings of his movement electronically and

by sitting in the meetings taking notes. (Tr. 286 & 287)

Rev. Shuttlesworth testified that the Birmingham Police

persecuted his civil rights movement when it was meet-

ing at his church and at other places. (Tr. 286 & 287) He

left Birmingham in August of 1961 and moved back to

Cincinnati where he lived at the time of the trial. (Tr. 90 &

91) That was Lt. Cook's objective as mentioned above.

(Tr. 257).

Petitioner testified that he met with Lt. Cook, Cap-

tain Pattie and Mr. Hugh Morris because he was going to

expose them for attempting to entrap people and that he

made public speeches exposing them for attempting to

entrap him. (Tr. 340, et seq) He nevertheless emphati-

cally der:ied any involvement whatsoever in said crime.

No one identified petitioner at the scene of the

explosion on the day that it happened. Petitioner was not

seen at the scene of the explosion and the State con-

ceded that he did not personally place an explosive

there. Witnesses did not claim to see anybody place the

explosive and this case rests upon circumstantial evidence.

REASONS FOR GRANTING THE WRIT

l.

The decision of the Alabama Court of Criminal

Appeals in affirming the trial court's overruling petition-

er's plea in bar and motion for new trial based on the

highly prejudicial pre-indictment delay of over nineteen

years after the alieged criminal act is in violation of the

due process rights of petitioner under the Fourteenth

Amendment and conflicts with this Court's ruling in

UNITED STATES v. MARION, 404 U.S. 307 (1971); UNI-

TED STATES v. LOVASCO, 431 U.S. 783 (1977) and

UNITED STATES v. VALENZUELA-BERNAL, 102 S. Ct.

3440 (1982). The decision is also in conflict with United

7

States Courts of Appeal in UNITED STATES v. COR-

DOVA, 537 F.2d 1073 (1976); UNITED STATES v. RICE,

550 F.2d 1364 (1977); UNITED STATES v. BRAND, 556

F.2d 1312 (1977); and especially in conflict with the deci-

sion in the United States Court of Appeals for the Fifth

Circuit in UNITED STATES v. TOWNLEY, 665 F.2d 579

(1982). It is in further conflict with the Supreme Court of

West Virginia in STATE v. HEY, 269 S.E. 2nd 394 (1980);

and the Supreme Court of Illinois in PEOPLE v. LAW-

SON, 367 N.E. 2nd 1244, 1248 (1977). The opinion of the

Alabama Court of Criminal Appeals fo!!ows a rule that is

in opposition to the many courts which have ruled that a

long, unexplained pre-indictment delay shifts the burden

once petitioner shows that he has been prejudiced by the

delay. UNITED STATES v. TOWNLEY, supra, STATE v.

HEY, supra and other jurisdictions disagree with the Ala-

bama courts and have ruled that where there is a long

unexplained pre-indictment delay, prejudice is presumed

and the burden then rests on the prosecution to show

that the delay was justified, which the State failed to doin

your petitioner's case. Rule 17 (b) of the Rules of this

Court.

Many of the facets and aspects of prejudicial pre-

indictment delay in violation of due process have been

ruled on by various courts in ways which favor petition-

er's position. The conflict now needs to be settled by this

Court in accordance with Rule 17 (c) of the Rules of this

Court.

Should the unexplained 19% year delay in instituting

prosecution in this case be considered substantially

equivalent in legal import to a delay occasioned by the

prosecution's desire to obtain a tactical advantage over

the accused? This instant case at bar breaks all records

in terms of time as shown by all of the other cases which

have dealt with pre-indictment delay.

The record demonstrates that the offense charged in

the indictment occurred in the early morning hours of

June 29, 1958 in Birmingham. (Tr. 93) It is undisputed

that the indictment on which the conviction is based was

returned by the Jefferson County grand jury on Sep-

tember 26, 1977. (Tr. 464) The State’s two prosecuting

attorneys conceded at trial that there was no reason they

knew of why the case was not earlier brought to the

attention of the grand jury, nor why Alabama and Jeffer-

son County prosecutors and law enforcement officers

did not earlier endeavor to resolve the matter of prosecu-

tilng petitioner. [Testimony of Honorable Burton Dunn,

Assistant District Atturney, Jefferson County, Alabama

(Tr. 418-420) and testimony of John A. Yung, IV, Assist-

ant Attorney General. (Tr. 421-426)]

Likewise, it was conceded that petitioner had done

nothing to impede or hinder the procurement of the

indictment. It is likewise conceded by the State that there

was no new evidence developed and that there were no

new leads pursued in the ensuing 19% years up to and

including the day of indictment. (Tr. 419, 420, 423) The

State virtually admitted and the Trial Court apparently

found as a matter of fact that the reason for the delay was

that the State did not believe that it could secure a con-

viction at an earlier date, but did believe that they would

have a better chance to do so almost twenty years after

the alleged crime. (Tr. 459)

in considering contentions of prejudicial delay in

violation of due process, this Court has implicitly held

that the reasons which the prosecution assigns for such

a delay must be weighed against any harm that inures to

the accused in presenting his defense. United States v.

Lovacso, Supra; United States v. Marion, supra. This

Court has never before had an opportunity to review a

case where absolutely no reason was advanced to

explain a pre-indictment delay as long as in the present

case. Even the decision of the Alabama Court of Criminal

Appeals acknowledges that the delay herein is unexplained.

Lower federal and state appellate courts faced with

the same issue presented in this case have held that an

unexplained, extensive delay in instituting prosecution

can be deemed to be the legal equivalent of a delay

eccasioned by a design to obtain a tactical advantage

over an accused. UNITED STATES v. BARKET, 532 F.

2nd 189 (8th Cir., 1975); United States v. Townley, supra,

United States v. Richburg, 478 F. Supp. 535 (M.D. Tenn.

1979); State v. Hey, supra. In the case of State v. Hey, the

Supreme Court of Appeals of the State of West Virginia

said that an unexplained delay of eleven years in begin-

ning a criminal prosecution by seeking an indictment

gave rise to a presumption of prejudice to the accused

and obliged the State to justify the delay. The decision of

that court of last resort is in obvious conflict with the

Alabama appellate courts..

Contrary to the decisions of the Alabama Court of

Criminal Appeals, the courts of many jurisdictions have

ruled that where there is a long unexplained delay, prej-

udice is presumed and the burden then rests on the

prosecution to show that the delay was justified. The

State of Alabama offered no excuse for its 19% year delay

and it failed in its obligation to show a logical and legiti-

mate reason consistent with due process requirements

of the United States Constitution.

in People v. Gulley, (1980) 404 N.E. 2nd 1077, 83 Ill.

10

App. 3rd 1066, the Illinois Court of Appeals thought thata

51 month indictment delay was too long and adopted the

language of People v. Lawson, supra, which said, “If the

accused satisfies the trial court that he or she has been

substantially prejudiced by the delay, then the burden

shifts to the State to show the reasonableness, if not the

necessity for the delay.” That court went on to say, “The

length of the delay here, 51 months, causes great suspi-

cion and gives rise to a presumption that the delay was

prejudicial.” 404 N.E. 2nd 1077, 1080.

The long delay, over four times as long as in Gulley,

gives rise to a presumption and should cause the burden

to be on the prosecution to show the reasonableness of

the delay, contrary to the hoiding of the Alabama Court

of Criminal Appeals in the case at bar.

The Alabama Court of Criminal Appeals is in conflict

with the decision of the United States Court of Appeais in

United States v. Townley, supra, which approvingly

quotes United States v. Brand, supra, in saying that a

pre-indictment delay of 41 months was too long and

would not automatically justify prejudice to an accused.

The reasoning of the foregoing cases is in accord

with the obvious fact that the prosecution's intent in such

circumstances can only be proven by the results it

achieves since, few, if any, prosecuting attorneys would

ever expressly admit to having a desire to prejudice an

accused in the presentation of his defense by delaying

prosecution for an inordinate period of time. In the

absence of such inferences of intent, the task of a

defendant such as the petitioner in proving a prosecu-

tor's plan to gain a tactical advantage and to embarass a

defendant in his defense will be almost insurmountable if

not impossible. One cannot interrogate prosecuting

11

attorneys, law enforcement officers and other govern-

ment officials involved in an accused's case as to their

reason for not bringing charges over nineteen years ear-

lier when such individuals may be dead or no longer able

to remember the details of the case, or when their whe-

reabouts may be unknown.

In this case the State gave no reason or excuse for its

delay. When the Alabama Supreme Court denied certio-

rari, there was only one opinion, the dissenting opinion

(Appendix, infra) by Justice Faulkner whose opinion

stated,

The Court of Criminal Appeals affirmed,

and conceded that no explanation appears in

the record justifying the 19 years’ delay. it can

be inferred that the 19 years’ delay was for the

State to gain a tactical gain over Stoner. In

other words, wait long enough and a climate of

conviction will emerge, whereas if Stoner had

been tried within a reasonable time, chances

were greatly in his favor that he would have

been acquitted. The trial judge stated, “I would

almost find that as a matter of fact for the rea-

son of delay the State did not feel they could

successfully prosecute in 1958.”

It is clear that where the prosecution has delayed, as

in the present case, so that the prosecution could gain

some tactical advantage, the delay was prejudicial and

the conviction should be reversed. United States v. Mar-

ion, supra; United States v. Lovasco, supra; and the way

that those cases have been interpreted, United States v.

Cordova, supra; United States v. Rice, supra; United

States v. Alderman, 423 F. Supp. 847; People v. Gulley,

supra; Stete v. Hey, supra, and others.

12

The unexplained pre-indictment delay of over nine-

teen years, longer than any other case on record, was

palpably unjustified. That 19% year delay creates a pre-

sumption of prejudicial delay which violates petitioner's

due process rights.

The ruling of the Alabama Court of Criminal Appeals

additionally conflicts with United States v. Mills, 641 F.

2nd 785 (9th Circuit 1981) and with this Court's recent

decision in United States v. Valenzeula-Bernal, supra. As

specified by these two cases, petitioner made and sub-

mitted his own affidavits showing that four of his wit-

nesses died before his indictment which in turn made a

showing of what each would have testified to if still alive.

In United States v. Mills, supra, the United States Court of

Appeals for the Ninth Circuit said:

Showing that witnesses have been lost or

that evidence has become unavailable due to

the delay suggests actual prejudice. But itis not

enough to assert that potential witnesses have

been lost. A defendent must identify the wit-

nesses, relate the substance of their testimony,

and efforts made to locate them.

The record shows that petitioner did all of the things

required by the Mills case and also introduced properly

authenticated death certificates that proved the death of

his four deceased witnesses during the 19% year period

of time between the day of the alleged crimes and the day

of indictment.

This Court's decision in Valenzuela-Bernal, supra,

said:

In other cases the criminal defendant may

advance additional facts, either consistent with

facts already known to the court or accompan-

13

ied by reasonable explanation for their incon-

sistency with such facts, with a view to persuad-

ing the court that the testimony of a deported

witness would have been material and favora-

ble to his defense. Because in the latter situa-

tion the explanatior of the materiality is testi-

monial in nature, end constitutes evidence of

the prejudice incurred as a result of the depor-

tation, it should be verified by oath or affirma-

tion of either the defendant or his attorney. 102

S.Ct. at page 3450.

Petitioner did verify with affidavits as to what the testim-

ony of his deceased witnesses would have been and

attested to the materiality of their testimcny with the

procedure and fashion requirea by Valenzuela-Bernal,

supra. The decision of the Alabama Court of Criminal

Appeals therefore conflicts with those two cases when it

denounces petitioner's affidavits as “self-serving decia-

rations” and as “rank hearsay” (Appendix, infra).

Even though the prosecutors stated in the triai that

they did not claim that petitioner personaily set off the

explosion, they nevertheless claimed that he got “his

boys” to do it. Yet, they introduced no evidence what-

soever to identify such “boys” and introduced no wit-

nesses who claimed they ever saw any such boys. There

were no eye witnesses to testify that they saw anybody

set off the explosion in this case of circumstantial evi-

dence. There was no evidence to support their conjec-

ture of a conspiracy. The indictment did not ailege a

conspiracy and named petitioner as sole dcfendant. Two

of petitioner's witnesses would have been alibi witnesses

who would have testified that he was in Georgia and not

in Alabama at the time of the offense on June 29, 1958.

14

Petitioner submitted an authenticated death certifi-

cate showing tnat his landlady, Mrs. Hortez Johnson,

had cied on September 2, 1961 and an affidavit showing

that she would have testified to facts proving that peti-

tioner could not have been in Birmingham, Alabama at

the time of the alleged bombing because he was in Dub-

lin, Georgia on that critical date. By the same means,

petitioner showed by affidavit and death certificate that

Beverly Bernard Tanner, Jr. of Dublin, Georgia was with

petitioner in Georgia at the time of the alleged offense in

issue and that petitioner was not in Birmingham, Alabama.

The death certificate introduced into evidence showed that

Mr. Tanner died on February 10, 1977 which, of course,

was prior to the date of indictment. Petitioner's affidavit

also reflects that Mr. Tanner could have corroborated

petitioner's testimony in other material aspects.

Another affidavit submitted by petitioner sets forth

the probable testimony of Ralph Barron, another asso-

ciate of his during the period when this crime occured.

His testimony, had it been available to the defendant,

could have possitly persuaded the jury to acquit. How-

ever, a properly authenticated death certificate tendered

with the affidavit shows that Mr. Barron died on August

10, 1976.

An affidavit of particular importance submitted by

petitioner was the one embodying the putative testimony

of Mark Richard Bowling, II. His death certificate in

evidence showed that he died on September 23, 1973.

Bowling’s testimony would have shown that petitioner

knew that he was dealing with police agents when they

initially discussed the bombing. This testimony would

have obviously rendered it highly unlikely that petitioner

ever intended actually to participate in any such crime.

15

Bowling could have additionally testified that after the

crime had taken place another person, Hugh Morris,

admitted to Bowling that he was the person who ordered

the church to be bombed by using a police informer. The

exculpatory value of such testimony to the petitioner is

self-evident.

If those jour dead witnesses had been alive and testi-

fied for petitioner, their testimony could easily have pre-

suaded the jury of petitioner's innocence or could have

at jeast created a reasonable doubt as to his guilt. All

of their testimony would have been admissible, mate-

ria!, relevant and probative as to the issues in the case.

Contrary to the decision of the lower court, Mr. Stal-

Iworth’s testimony would not have taken the place of the

testimony of any of the four deceased witnesses. For

instance, Mr. Bowling knew informer Hugh Morris, whe-

reas Mr. Stallworth did not know him personally.

Concerning governmental action which leads to the

unavailability or the destruction of evidence of possible

exculpatory value to the accused, this Court in United

States v. Agurs, 427 U.S. 97, 112-113 (1976) set forth the

following standard for determining materiality:

The proper standard of materiality must reflect

our overriding concern with the justice of find-

ing guilt. Such a finding is permissible only if

supported by evidence establishing guilt beyond

a reasonable doubt. It necessarily follows that if

the omitted evidence creates a reasonable

doubt that did not otherwise exist, constitu-

tional error has beer: committed. This means

that the omission must be evaluated in the con-

text of the entire record. If there is no reasona-

ble doubt about guilt whether or not the addi-

16

tional evidence is considered, there is no justifi-

cation for a new trial. On the other hand if the

verdict is of questionable validity, additional

evidence of relatively minor importance might

be sufficient to create reasonable doubt.

Petitioner introduced evidence to prove that he was

working for State Farm Mutual Automobile Insurance

Company in the City of Dublin in middie Georgia at the

time of the offense. He proved that he was employed at

that time in 1958 at State Farm's office in Dublin and

adjusted accident claims for them in a seventeen county

area. Testimony was introduced showing that his duties

included taking statements from witnesses to accidents

and settling accident claims. Petitioner negotiated set-

tlements and wrote checks as he was authorized to do by

the company. (Tr. 312) He kept a daily record of his

expenses including motel bills, gasoline and oil and each

week sent them to his regional office for reimbursement.

All such daily records that were submitted weekly were

dated and would have shown the whereabouis of peti-

tioner during June of 1958.

An official of State Farm testified that his company

had destroyed all such employee records as needed by

petitioner in 1972. (Tr. 294-302) These records which

would have helped prove the innocence of petitioner, as

well as that the State’s two main witnesses, Tom Cook

and C.S. Johnson, were testifying falsely against peti-

tioner were destroyed by the company and unavailable

to petitioner because of the pre-indictment delay of

almost twenty years. Ir conflict with the Court's deci-

sions in United States v. Marion, supra, United States v.

Vaienzuela-Bernal, supra, and in conflict with various

U.S. Courts of Appeal and state courts of last resort, the

17

Alabama Court of Criminal Appeals simply brushed

aside the strong evidence of prejudice occasioned by the

delay. That court completely disregarded the impor-

tance of the unavailable and destroyed documentary

evidence, the loss of which seriously prejudiced the

defense of petitioner. That unavailable documentary

evidence would have been admissible.

Petitioner submits that in order for the Alabama

Court of Criminal Appeals to have found that he was not

prejudiced by the delay, it would have been incumbent

upon that court to assess and examine every single item

of absent or lost testimony and documentary evidence

enumerated above in order to determine each item's

admissibility in an Alabama trial court. A cursory reading

of its opinion shows that it did not engage in any such

evidentiary analysis.

Given the highly circumstantial nature of the State's

case against petitioner, the proposition also necessarily

follows that if that court were to find any single item of his

proffered evidence to be admissible, petitioner would

have to be deemed to have shown prejudice resulting to

him from the delay as a matter of law and his conviction

would have to be reversed. The principles enunciated

above set forth by this Court in United States v. Agurs.

supra, and United States v. Valenzuela-Bernal, supra,

allow no other result.

Since this is the only conviction of petitioner in his

life and he had never been convicted of any offense

before this (Tr. 342) and has never been convicted of any

offense since, there was no reason for him to anticpate

and prepare for an indictment returned in September,

1977 for an alleged offense committed in June of 1958,

the decision of the lower court notwithstanding.

18

For all of the reasons set forth above, the decision of

the Aiabama Court of Criminal Appeals violates petition-

er’s due process rights as guaranteed by the Fourteenth

Amendment and that decision conflicts with the deci-

sions of this Court cited above and conflicts with deci-

sions of various United States courts of appeal! and state

courts of last resort.

Accordingly, certiorari should be granted to review

this substantial conflict between the Alabama Court of

Crimina! Appeais on the one hand and the several United

States: ts of appeal and various S*ate courts on the

other hand, 30 as to resolve ail of these conflicts and so

that this Court may examine all of the facets and aspects

of pre-indictment delay thai have been resolved by other

courts but not by this Court. The petition for a writ of

certiorari should be granted.

REASONS FOR GRANTING THE WRIT

ll

Petitioner was indicted on September 26, 1977 fora

crime that allegedly occurred or June 29, 1958 and the

Alabama Court of Criminal Appeals ruled that his prose-

cution was not barred by Alabama's three year statute of

limitations, but impliedly held that a person who commit-

ted the same crime since this Court cutlawed che Ala-

bama death penalty in the case of FURMAN v. GEOR-

GIA, 408 U.S. 238 in 1972 could benefit from the statute

of limitations. That decision by the Alabama Court of

Criminal Appeals violated petitioner's right to equal pro-

tection of the laws as guaranteed by the Fourteenth

Amendment to the United States Constitution.

19

Petitioner was charged with violating the provisions

of Title 14, Section 123 of the Alabama Code of 1955

which has been carried forward into the Alabama Code

of 1975 as Section 13-2-60 and is unchanged except that

the death penalty provisions are deleted.

At the time of the alleged crime on June 29, 1958, the

State of Alabama could have inflicted the death penalty

upon petitioner for allegedly setting off explosives dan-

gerously near an inhabited dwelling even though

no one was killed. In this case, no one was killed. The

State has not been able to impose the death penalty upon

petitioner since this Court's decision in FURMAN v.

GEORGIA, supra. Since 1972 there has been no death

penalty for violating either the oid or the new code sec-

tion unless someone is killed. Since petitioner was not

indicted for the 1958 bombing until September 26, 1977,

he is entitled to the benefit of Alabama's three year sta-

tute of limitations as provided by Title 15, Section 221 of

the Alabama Code of 1940 and Section 15-3-1 of the

Alabama Code of 1975.

That the term “capital offense” is and has been a

rather amorphous and changing category of crimes in

Alabama, other than those specifically enumerated in the

limitations statute such as murder, is evident from a cur-

sory reading of the Alabama Supreme Court's decision in

BECK v. STATE, 396 So. 2nd 645 (1980). Also obvious is

the proposition that after this Court's ruling in FURMAN

v. GEORGIA, 408 U.S. 238 (1972), capital felonies as

such ceased to exist in Alabama. Such a result necessar-

ily obtains because the Alabama appellate courts had

heretofore ruled that no offense can be truly capital

unless the death penalty can be imposed. EX PARTE,

McCRARY, 22 Ala. 65, 72; LEE v. STATE, 13 So. 2nd 583

(Ala. App. 1943).

The Aiabama Court of Criminal Appeals based its

decision on a misunderstanding of MANUCY v. WADS-

WORTH, 293 So. 2nd 345 (Fla. 1974). The Supreme Court

of Florida clarified its MANUCY opinion when it ruled in

REINO v. STATE, Fia. 352 So. 2nd 853 (1977) and REINO

fully supports petitioner's right to Alabama's three year

statute of limitations. Since the Alabama Court of Crimi-

nal Appeals is relying on the Florida Supreme Court, it

shoulc not be in conflict with that court's ruling in REINO

v. STATE, supra, which was presented in petitioner's

brief to the Alabama courts. Rule 17 (b) of the Rules of

this Court.

The Alabama Court of Criminal-Appeals (Appendix,

infra) says that the statue of limitations is a substantive

right and remains the same, regardiess of FURMAN v.

GEORGIA, supra, and that petitioner cannot have the

benefit of the three year statue of limitations, in conflict

with the Reino case by the Florida Supreme Court.

REINO v. STATE, supra, refers to MANUCY v. WADS-

WORTH, supra, at page 856 in light of DONALDSON v.

SACK, 265 So. 2nd 499 (Fila. 1972) and beginning at page

857, REINO v. STATE says:

[2] The compelling tenor of Donaldson is to the

effect that all attributes of capita! crimes, pro-

cedural or substantive, fall when and so long as

the death penalty is abolished. The State main-

tains that although procedural changes such as

those discussed in Donaldson follow from abo-

lition of the death penalty, substantive matters

such as the statue of limitations were not so

affected. This assertion, however, is refuted by

cases from jurisdictions which have considered

21

the effect of abolition of the death penalty on

the substantive question of entitlement to bail.

This court was not presented with that issue in

Donaldson because, as noted, the applicable

constitutional and statutory provisions limited

the right to bail for offenses punishable by life

imprisonment as well as those punishable by

death.

At page 858, REINO goes on to say:

Hence, it is apparent that all incidents of

capital crimes, substantive as well as procedu-

ral, become inapplicable upon abolition of the

death penalty. it would be conceptually incon-

sistent to conclude that the procedural advan-

tages inuring to a defendant in a capital case

fall with abolition of the death penalty and then

conclude that the substantive disadvantages

(limitations or entitlement to bail and unlimited

statue of limitations) remain viable.

The Alabama Court of Criminal Appeals (Appendix,

infra) said

At the time appellant was indicted, Alaba-

ma’s new dealth penalty provision was in effect

and did not include appellant's alleged felony.

Section 13-11-1 through 9, Code of Alabama

1975.

The Alabama Court of Criminal Appeals goes on to

say that it agrees with the Florida Supreme Court and

believes that the Florida Supreme Court in MANUCY v.

WADSWORTH, supra, (1974) clearly and concisely add-

ressed the issue. The Alabama court is in conflict with

MANUCY and with REINO v. STATE, supra, a case that

pointedly and clearly explains MANUCY to the effect that

22

petitioner is entitied to the benefit of the statute of

limitations.

In addition to REINO, the better reasoned decisions

which have dealt with this precise issue have held that @

defendant who was being prosecuted under such cu:

cumstances as the petitioner should have the benefit of

the statute that bars prosecution. UNITED STATES v.

PROVENZANO, 423 F. Supp. 62 (S.D. of N.Y., 1976

affirmed, 556 |. 2nd 562 (2nd Circuit 1977); UNITED

STATES v. BROWN, 422 A. 2nd 1281 (D.C. App. 1980).

PROVENZANO especially fits petitioner's case.

Nevertheless, in deciding petitioner's case, the Ala-

bama Court of Criminal Appeals is in conflict with the

above cited cases by holding that the state has a perpet-

ual right to prosecute petitioner for the criminal offense

at issue since it was deemed to be a “capital offense” at

the time that it was committed in 1958. Thus, petitioner is

placed in the anomalous poistion of being subjected to

everlasting criminal liability on account of this crime,

whereas a similarly situated defendant who might be

accused of having committed the same offense after the

FURMAN decision would have the benefit of the three

year statute of limitations against a tardy and stale

prosecution of the matter. It is submitted that such an

irrational and inexplicable distinction between petitioner

and those people accused of having committed the same

crime after the FURMAN decision in 1972 constitutes a

denial to petitioner of due process and equal protection

of the Alabama statue of limitations in criminal cases in

contravention of the Fourteenth Amendment to the Uni-

ted States Constitution.

That statutes of limitation and their construction are

subject to equal protection analysis is shown by two very

23

recent decisions of this Court, MILLS v. HABLUETZEL,

102 S. Ct. 1549 (1982); G.D. SEARLE & CO. v. COHN, 102

S. Ct. 1137 (1982). In G.O. SEARLE & CO. v. COHN at

1141-1142, this Cour* held that, at the very least, there

must be a rational basis for a statute of limitations to

delineate between cases of potential litigants. On the

other hand, where more substantial personal interests

are involved, such as the right to family identity and

parental support, this Court has held that there must bea

substantial relationship between the socially desirable

ends sought to be acheived by a statute of limitations and

the means, through the use of the statute, by which these

goals are sought to be achieved. MILLS v. HABLUETZEL

at 1555.

Given petitioner's fundamental, basic constitutional

right to life and liberty, he argues that the state should be

required to show a compelling interest in exempting his

case from the statute of limitations provision before he

can be deprived of its protection. No such interest or

concern is enuciated in the decision of the Alabama

Court of Criminal Appeals in which they have not only

disregarded PROVENZANO, supra, but also a decision

of the Florida Supreme Court in MITCHELL v. STATE, 25

So. 2nd 73 (1946) which illustrates that limitation of

prosecution statutes are subject to equal protection

analysis.

It is extremely doubtful that any reason can be

cogenity advanced for such disparate treatment of peti-

tioner. Since anybody else charged with violating the

same code section would be protected against prosecu-

tion by the statue of limitations, it would definitely

deprive petitioner of equal protection of the law guaran-

teed by the Fourteenth Amendment to deny him the

24

benefit of the same statute.

Since the case of FURMAN v. GEORGIA, supra,

(1972) declared the death penalty unconstitutional, peti-

tioner should have the benefit of the three year statute

beginning in 1958, or at the least, beginning in 1972 at the

time of the FURMAN decision by this Court.

Accordingly, certiorari should be granted to review

this substantial conflict wherein the Alabama decision

conflicts with decisions of the Supreme Court of Florida,

the United States Court of Appeals for the 2nd Circuit,

and others.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

Fleming Lee

300 Independence Avenue, S.E.

Washington, D.C. 20003

Attorney for Petitioner

November 10, 1982

25

CERTIFICATE OF SERVICE

This is to certify that upon the date stated above. |

have served a true copy of the within and foregoing

Petition for a Writ of Certiorari To The Alabama Court of

Criminal Appeals and the Supreme Court of Alabama

postage prepaid to opposing counsel by sending three

copies to:

Honorable Charles E. Graddick

Attorney General of Alabama

250 Administrative Building

64 N. Union Street

Montgomery, Alabama 63130

and the required number of copies to:

Mrs. Mollie Jordan

Clerk

Alabama Court of Criminal Appeals

445 Dexter Avenue

Montgomery, Alabama 36104

Fleming Lee

Attorney for Petitioner