Petition for Writ of Certiorari — Hooper v. Alabama

f Supreme Court U.S.

° FILLED

90-1749 |

+; MAY 9 1991

NO. 4

SSFICE GF THE CLERK

eaten,

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

JOHN EDWARD HOOPER,

Petitioner,

versus

STATE OF ALABAMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE ALABAMA SUPREME COURT

AND

ALABAMA COURT OF CRIMINAL APPEALS

PETITION FOR WRIT OF CERTIORARI

Paul M. Harden

ATTORNEY FOR PETITIONER

417 Rural Street

Evergreen, AL 36401

205/578-4746

QUESTION PRESENTED

Whether the Alabama Supreme Court can

alter a rule of evidence and apply that

ruling retroactively to supply the necessary

evidence to convict the Petitioner without

transgressing the prohibition against ex post

facto law contained in Article I of the

United States Constitution or the Due Process

Clause contained in the Fifth and Fourteenth

Amendments to the United States Constitution.

il

TABLE OF CONTENTS

PAGE

Question Presented ........ +os ee eee 1

TOGiG OF COSOO 1.444064: 4058 cee eee iii

Statutes and Rules Cited ...c.ssseee V

Opinion Below .......... teceeesanae 2

PRUCERCLCCION 64 Goi ceees ceenes err 2

Constitutional Provisions and

Statutory PLOViSIONS 1. «swe oe eee 3

Statement Of the CaQe «ssc kde eee 5

Reasons for Granting the Writ ..... 21

COMNGCEGGLON 22530 ore eeees coeeeaee ° 40

BPG RGEE 66s os be ee es 0 ae eee la

iil

TABLE OF CASES

PAGE

Beazell v. Ohio, 269 U.S. 167,

46 S.Ct. 68, 60 L.Ed.

Deh Cee Cepaeeeereseoeesceceecs 21,33,34

Bouie v. City of Columbia,

378 U. S. 347, 84 S.Ct.

peers be wee. 20 O94 (1964) avec 22,29,30

; 31

Calder v. Bull, 3 U.S. 386,

err er CL PSE) po neceecasveves 26,27

Cloud v. Moon, 290 Ala. 33,

Te ES 8 ee 2 eer 23

Corona Coal & Iron Co. v. Callahan, _

202 Ala. 649, 81 So. 591 (1919) .. 23

Coy v. Iowa, U.S. ,

108 S.Ct. 27/798, 2803, 101

Crt PAPER) poco reece voveces 37

Dobbert v. Florida, 432 U.S. 282,

o? Bsuee 2290, 453 L.Ed.2d

ee ee. 6 ss 6 666 6 ee 6 be ee 6 8 8 32

E. E. Yarbrough Turpentine Co. vy.

Taylor, 201 Ala. 434, 78 So.

DEE. “She bee sneer eeeseseseces 23

Ex Parte: In Re: Hooper vy.

State, So.2d

PP Ay LOPU) cose cccccccees 22,24

Hooper v. State [Ms. 3 Div. 91l,

March 30, 1990], So.2c

eee eme moe, 1990) .seceece 25

Hooper v. State, So.2d

CT EaOORy as es ee shee Awe SOE S's 38

Hopt v. Utah, 110 U.S. 574, 4

S.Ct. 202, 28 L.Ed. 262 (1884) ..- 32

Kennedy v. State, 85 Ala. 326,

5 So. 300 (1888) «coerce eevercerees a3

Lanzetta v. New Jersey, 306 U.S.

451, 59 S.Ct. 618, 83 L.Ed.

BBB (1939) ccovccccccccesesececess 29

Lester v. Jacobs, 212 Ala. 614,

103 SO. 682 (1925) «ee ceeeeereens 23

Manning v. State, 217 Ala. 357,

116 SO. 360 (1928) «cere eeeeereens 23

Marks v. United States, 430 v.68.

186, 97 S.Ct. 990, 5l L.Ed.2d

260 (19TT) ccvecsssseesesraeeeeese 28,29,30

Miller v. California, 413 U.S. 15,

Ss Sckt. 200le Sf L.Ed.2d

eh OS VE MRE CRE CE Eee ee. 30

Miller v. Florida, 482 U.S.

423. 107 S.Ct. 2446, 96

L.Ed.2d 351 (1987) -cseceeererecces 27

Pennsylvania v. Ritchie, 480 7

U.S. 39, 60, 107 S.Ct. 989,

1003, 94 L.Ed.2d 40 (1987) «-+ees- 37

Porter v. Louisville & Nashville RR,

202 Ala. 139, 79 So. 605 (1918) ... 23

Rabe v. Washington, 405 U.S. 313,

92 S.ct. 993, 31 L.Ed.2d

250 £1970) cece cccccsvessenvseress 30

——— is

Vv

Thompson v. Missouri, 171 U.S. 384,

18 S.Ct. 92, 30 L.Ed. 204 (1898) . 32

Thompson v. Richardson, 96 Ala.

SUG, 2h BOs TIO CORE) 6546 owe caw ss 23

United States v. Harriss, 347 U.S.

6lzZz, 74 S.Ct. 80S, 38

seBG@s8G SES CIiSSS) os vccdewtives ex 29

Walker v. State, 433 So.2d 469

€ os i) fee ere ee re ee 21,33, 34

35

Weaver v. Graham, 450 U.S. 24, 101

Set. 9OG, 67 L.BG.20d 17 €1981) .. 27

STATUTES AND RULES CITED

C. Gamble, McElroy's Alabama

_. Evidence, §159.02(1),

Cae Ee 6 ee ae 23

United States Constitution,

PEE ce ete - hs wk wc hare 8 ee oe 3,24,39

40

United States Constitution,

Fourteenth Amendment .....ccceeecs 3,462"

39,40

United States Constitution,

RECS 24s eke or es Oa eek eke 26.3330

United States Constitution,

MECER SO 5s ee eke Oe eee ee ei 38

United States Constitution,

AETECIG 2s SEG Lec ckens anna end wes 344,29

vi

2G, U.G.C.i SLIZS7T(S) wvccccvcvsesvess

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

JOHN EDWARD HOOPER,

Petitioner

versus

STATE OF ALABAMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

ALABAMA SUPREME COURT AND ALABAMA

COURT OF CRIMINAL APPEALS

Petitioner, John Edward Hooper,

respectfully prays that a writ of certiorari

issue to review the judgment of the Alabama

Supreme Court and the Alabama Court of

Criminal Appeals, whereby Substantial

constitutional issues by Petitioner were not

answered by either of the said courts, even

though timely raised.

OPINION BELOW

The ruliiug by the Alabama Court of

Criminal Appeals as to the original appeal

filed on January 30, 1989 (Third Division,

Number 91) set forth infra in Appendix la.

The ruling by the Alabama Supreme

Court reversing the decision of the Alabama

Court of Criminal Appeals and affirming the

Circuit Court of Escambia County, Alabama on

December 14, 1990, as set forth infra in

Appendix lb.

The denial of Petitioner's Application

for Rehearing by the Alabama Supreme Court on

February 8, 1991, as set forth infra in

Appendix lc.

JURISDICTION

The Petitioner invokes this Court's

jurisdiction pursuant to 28 U.S.C. §1257(3)

3

in that the ruling by the Alabama Supreme

Court denies him due process of law as

Guaranteed by the Fifth and Fourteenth

Amendments to the United States Constitution

and of his right not to be subject to ex post

facto law as prohibited by Article I, §§ 9

and 10 of the United States Constitution;

hence, Petitioner's application to this

Honorable COurt to review the order of the

Alabama Supreme Court dated December 14,

1990.

CONSTITUTIONAL AND STATUTORY PROVISIONS

This case involves the Fifth and

Fourteenth Amendments of the United States

Constitution, as well as Article I, §§ 9 and

10 of the United States Constitution.

The Fifth Amendment of the United

States Constitution provides, in part, as

follows:

No person shall ... be deprived

States

4

of life, liberty or property,

without due process of law.

The Fourteenth Amendment of the United

Constitution, in pertinent parts,

provides as follows:

No state shall ... deprive any

person of life, liberty or

property, without due process

of law.

Article I, § 9 of the United States

Constitution provides, in part, as follows:

No bill of attainder or ex post

facto law shall be passed.

Article I, § 10 of the United States

Constitution provides, in part, as follows:

No state shall... pass any

bill of attainder, ex post

facto law, or law impairing the

Obligation of contracts, or

grant any title of nobility.

5

STATEMENT OF THE CASE ‘

Petitioner, a former State Trooper,

was indicted in a two count Indictment by the

Spring Term of the Escambia County Grand Jury

in 1985. He was duly arraigned on July 12,

1985, and entered a plea of not guilty.

Petitioner was first tried and

convicted on September 17, 1985, when a jury

returned a verdict against him with Rape,

Second Degree. This conviction was appealed

to the Alabama Court of Criminal Appeals. On

October 28, 1986, that court reversed and

remanded Petitioner's conviction because of

improper cross-examination of character

witnesses by the Honorable Don Valeska,

Assistant Attorney General.

On September 16, 1988, the Petitioner

waS again tried by jury and convicted of both

Count I and Count II of the Indictment. At

that time, sentence was deferred and on

November 2, 1988, the Honorable Bradley E.

Byrne announced judgment of sentence on

Petitioner as follows:

Accordingly, I sentence you

pursuant to the split sentence

statute to 5 years in the

state penitentiary on your

conviction under Count I, and I

sentence you pursuant to the

split sentence statute to 5

years on your conviction on

Count 2, 5 years, that will be

5 years in the state

penitentiary. These sentences

are to run concurrently.

Now, I would be unrealistic if

I did not expect this case to

be appealed based uopn the way

chis case progressed and some

very novel issues that were

raised at trial that this court

had to deal with, therefore, I

am not going to make a

determination at this time as

to how this sentence’ should be

split, or make a determination

as to probation. I am going to

reserve all of those questions,

all of those issues for

determination at a later time

once this case has’ been looked

at by the appellate courts of

this state, and if it is

affirmed then I will make a

determination or if no appeal

is taken then I will make a

7

determination at that time as

to how this sentence should be

served, whether probation

should be granted, and exactly

how this sentence should be

split.

You will also be required t

pay court costs in these cases

and the sum of $250.00 to the

Crime Victim's Compensation

Assessment.

On December 6, 1988, Petitioner filed

a Motion for Judgment of Acquittal and Motion

for New Trial. Both motions were subse-

quently overruled and denied by the trial

court on January 23, 1989.

At the time of sentencing On November

2, 1988, Petitioner gave oral notice of

appeal and subsequently on January 30, 1989,

filed further written Notice of Appeal was

filed in the Alabama Court of Criminal

Appeals. The Alabama Court of Criminal

Appeals released an opinion on March 30, 1990

reversing Petitioner's conviction and

remanding the case back with an order to the

8

trial court to enter a judgment of acquittal

for the Petitioner. The State filed an

Application for Rehearing on April 16, 1990,

which was denied on May 11, 1990.

Thereafter, on May 25, 1990, the State

petitioned the Alabama Supreme Court for a

writ of certiorari to the Alabama Court of

Criminal Appeals. The Alabama Supreme Court

granted the writ of certiorari on August 27,

1990. On December 14, 1990, the Alabama

Supreme Court issued an opinion reversing the

Court of Criminal Appeals.

Petitioner subsequently filed an

Application for Rehearing in the Alabama

Supreme Court which was denied on February 8,

1991.

Hence, this Petition for Writ of

Certiorari.

The Petitioner was tried by jury in

the Ciccuit Court of Escambia County,

9

Alabama, the Honorable Bradley E. Byrne,

presiding, during the week of September 12-

16, 1988. On September 6, 1988, a pre-trial

hearing was held in which the State called

Josephine Bahm to establish that Kimberly

Hooper, the prosecutrix, was recanting her

rape allegations against her father, the

Petitioner.

A jury was struck on September 12,

1988 and the trial began on September 14,

1988. The first witness, Kimberly Hooper,

called as the court's witness, denied on

direct examination by the court the charges

contained in the indictment. From pages R-

124-125 of the transcript:

Q. (THE COURT): Did John

Edward Hooper engage in sexual

intercourse with you on or

about September 7, 1984.

A. WO, Sif.

Q. Did John Edward Hooper

engage in sexual intercourse

with you on or about December

10

= 13, 1984?

A. No, Sir. (R-124-125).

The court then permitted the State to

cross-examine the witness. Assistant

Attorney General Don Valeska cross-examined

Kimberly Hooper primarily by impeaching her

with inconsistent testimony she had given at

Petitioner's first trial. In the course of

this cross-examination, Kimberly, in her

prior testimony, accused her father, the

Petitioner, of raping her on the dates in

question (R-131-132).

Further, the impeachment testimony

contained allegations that the Petitioner had

been sexually abusing Kimberly since sne was

five years old (R-129-148). Also, Miss

Hooper identified three pornographic tapes

offered by the State for identification

purposes. She testified live that she had

watched these by herself. However, she was

———————<&<«a LL

11

then impeached with her prior testimony

wherein she stated that the Petitioner had

forced her to view them with him. On cross-

examination by the Petitioner, Kimberly again

denied that her father had raped her.

According to Kimberly, she told two of

her friends that her father had_ raped her

because she did not like them telling her how

lucky she was to have a father who was a

State trooper. She further stated that she

had attempted to recant her story. prior to

the first trial but had been threatened not

to do so. From page 208 of the record:

0. And is it a matter of

fact, Kimberly, that back there

in the back rooms of this

courthouse just before’ the

trial of your father on

September the 25th that one

Amelia Davis threatened you

with jail if you didn't come

out here and testify against

your father?

A. Yes, Sir. And also Mr.

Rebarchek from the Attorney

General's office, Miss Kathy

and

on

12

Hill and Mr. Doug Mitchell.

Q. Tell us what Miss Kathy

Hill told you back there just

before the trial?

A. That if I did not testify

the way that they wanted me to

they could have me charged with

perjury. (R-208).

pages (R-210-211):

0. Okay. And what other

threats or coercion, if there

we any, did you receive

re

before your father's trial in

september of 1985?

cr?

et’s see. In July I

a Sergeant Morris and a

ant Evans, they are both

‘oopers, and told them

tf true and I had been

d that Mrs. Davis and

ell called me and told

they could send a

deputy or someone to

me and take me to

, Then Mrs Davis told me

if I would agree to go to

~Oast Hospital and could

the people that I was

ng the truth when I said

't happen then I could

and they would drop the

And we had to go to

»

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.

Ct

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hw) (Vv

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aa

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<a rhree@OoOm

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QW we rng

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told me that if I wanted to

get out of Gulf Coast Hospital

that I had better Say it

happened or she could make--she

could, . how would you Say it,

She could make sure that I

would stay there,

Kimberly also testified at page 209

of the transcript that she had been

threatened with perjury charges before her

present testimony.

Q. MR. HARDEN: Have you been

told by anyone that you could

be charged with perjury today,

please, ma'am?

A. res, sir.

Q.- And who told you that?

A. Mr. Higgins.

Q. Who is Mr. Higgins?

A. I believe an investigator

for the Attorney General's

office,

Q. Is that Mr. Higgins sitting

On the front row right there

from the attorney general's

office?

ax.” Fee, “sir.

14

Q. Did he tell you that if you

came in this courtroom today

that you would be charged with

perjury?

A. He told me that my

testimony would be perjury

because I Said a different

Story in the first trial.

Q. Okay. Do you Know what

perjury is, Kimberly?

A. Not exactly, sir.

O, Do you Know you can go to

jail for it though?

ae TOB, Sif. (R-209).

The State called Mr. Donald Champion

and Captain L. N. Hagan to identify and

discuss the contents of the three

pornographic tapes. THereafter, the State

called Stephanie Milam, Tyra Thomley,

Michelle Lucas and Carol Middleton to testify

that Kimberly Hooper had made complaints to

them that her father had raped her. Ms.

Middleton, the counselor at Kimberly's

school, stated that she reported the abuse to

15

the Department of Human Resources.

Ms. Sally Aust testified that she

overheard a phone conversation between

Kimberly Hooper and the Petitioner in which

she heard the Petitioner say "I've said I

wouldn't do that again" or "J told you I

wouldn't do that again" (R-398).

Dr. Jimmy Adkisson testified and was

offered aS anexpert witness. Dr. Adkisson

stated that Kimberly Hooper's introitus, the

opening of her vagina and her vaginal wall,

waS enlarged. He said this enlargement could

have been from sexual intercourse (R-418).

The State also called Dr. James Chudy

aS an expert witness "from a psychological

Standpoint of child abuse" (R-440). Dr.

Chudy stated that based upon certain

validators used in evaluating children for

sexual abuse, he had reached the conclusion

that Kimberly Hooper had been sexually abused

16

(R-448).

The State's final witness was Amelia

Davis who had worked for the Escambia County

Department of Human Resources and investi-

gated Kimberly Hooper's complaint against her

father. She likewise identified the three

poronograhic tapes - and described the

contents. Mrs. Davis further testified that

Kimberly had changed her story against her

father on several occasions beginning on

September_19, 1985.

Finally, Mrs. Davis described numerous

emotional problems including nightmares,

eating disorders and periods of lying that

Kimberly had experienced since she had been

removed from her parent's home (R-522-523).

The Petitioner called 22 witnesses to

testify as to his good character and his

excellent reputation in the community for

truth and veracity. Virginia Hooper,

17

Petitioner's wife, was called and testified

as to the pressure placed upon her by Amelia

Davis and Doug Mitchell of the Department of

Human Resources to believe the accusations

against the Petitioner. This included the

cancelling and delaying her visitation with

Kimberly (R-613). Mrs. Hooper further

testified that Kimberly had experienced

emotional problems as early as age three (R-

618-619) and that to help control her

emotional problems Kimberly was prescribed

the drug Ritalin (R-622). Mrs. Hooper stated

that she had _ received reports of Kimberly

fantasizing after she had been removed from

her custody by the Department of Human

Resources,

The Petitioner, John Edward Hooper,

denied that he had ever sexually abused his

daughter (R-658). He further denied that he

had made either his daughter or Stephanie

18

Milam watch an X-rated film (R-658); or that

he had ever admitted raping his daughter

while talking with her on the phone (R-659).

During cross-examination the

Petitioner stated that while he had taken

certain X-rated tapes to his home, he did not

realize that they were pornographic until he

had watched part of one of them. At that

point he stopped watching it and returned all

of them as soon as possible. During cross-

examination, the Petitioner continued to deny

that he had ever sexually molested his

daughter in any way (R-686).

The Petitioner rested and renewed his

Motion for Judgment of Acquittal. The trial

court again denied this motion. During the

court's charge, june Byrne charged the jury

as follows on page R-75l1:

Now, the prior testimony of

Kimberly Sue Hooper given in

September of 1985 while she

was under oath and subject to

19

cross examination can be used

by you as substantive evidence

of the facts stated by her

during her prior testimony to

prove Or disprove the

innocence or quilt of the

Defendant John Edward Hooper of

the offenses alleged in the

indictment. Only the prior

testimony of Kimberly Sue

Hooper can be considered by you

as substantive evidence.

(Emphasis added).

Now, the prior testimony, as I

have already mentioned, of all

the other witnesses or of all

the witnesses can be used for

impeachment purposes, that is,

a witness's prior testimony can

be used to show that prior to

this trial the witness made

statements that are

inconsistent with the testimony

given in this trial and such

prior inconsistent statements

can be used by you to judge the

credibility of that witness.

The Petitioner requested that the

court recharge the jury at pages R-758-759

but the court refused. The Petitioner then

moved for a mistrial which was denied by the

court.

After he completed the charge, the

20

trial court finally ruled that due to the

inflammatory nature of their contents, the

poronographic tapes would not be admitted or

taken by the jury to the jury room during

deliberation. The jury began deliberating at

4:50 on September 16 and returned a verdict

of guilty to both charges at 6:30.

21

REASONS FOR GRANTING THE WRIT

"There may be procedural

changes which operate to deny

the accused a defense available

under the laws in force at the

time of the conviction of his

offense, or which otherwise

affect him in such a harsh and

arbitrary manner as to fall

within the constitutional

prohibition." Beazelil v. Ohio,

209 U.S. 167, 171, 46 S.Ct. 66,

69, 70 L.Ed. 216 (1925). The

Alabama Supreme Court, in the

present case, ruled on December

14, 1990, altering Alabama's

rule concering the admissi-

bility of prior inconsistent

statements as substantive

evidence and applied the new

ruling to Petitioner's trial on

September 12-16, 1988, when

previously there had been

insufficient legal evidence to

convict the Petitioner. "Where

the guilt or innocence’ turned

on the application of the

repealed law, therefore affect-

ing and disadvantaging the

defendant in the most substan-

tial manner possible. The

odious effect thereof compels

uS to find it to be ex post

facto." Walker v. State, 433

SOo.2d 469 (Ala. 1982). ris 8

State legislature is barred by

the Ex Post Facto Clause from

passing such a law, it must

follow that a State Supreme

22

Court is barred by the Due

Process Clause from achieving

precisely the same result by

judicial construction." Boule

v. City of Columbia, 378 U.S.

347, 353-354, 84 S.Ct. 1697, 12

L.Ed.2d 894 (1964).

On December 14, 1990, the Supreme

Court of Alabama rendered an opinion stating:

We think that it is time that

this Court changed our rule;

therefore, after examining the

record, considering the argu-

ments of the parties, and re-

evaluating the rule against

using prior inconsistent testi-

mony as Substantive evidence,

we hereby change that rule. We

frold that a prior inconsistent

Statement of a witness who

takes the stand and is avail-

able for cross-examination may

be used as substantive evidence

if the prior Statement was

given under oath subject to the

penalty of perjury at atrial,

hearing or other proceeding, or

in a deposition. Ex Parte

State: In Re: Hooper vy.

State, S$o.2d

(December 14, 1990).

This decision overruled over one

hundred years of case law in Alabama in which

23

the rule had generally been stated as

follows:

A self-contradictory statement

by a witness who is not a

party, whether testified to by

him on cross-examination Or

proven by others, is not

Substantive evidence of the

matter asserted, that is, such

statement operates only to

discredit the witness and has

no other effect, in particular,

such statement cannot be the

basis of a finding of fact

necessary to the establishment

of liability or defense, Cs

Gamble, McElroy's hlabama

Evidence, §159.02(1), (3d Ed.

1977). See, Cloud v. Moon, 290

Ala. 33, 273 So.2d 196 (1973);

Manning v. State, 217 Ala. 357,

116 So. 360 (1928); Lester vy.

Jacobs, 212 Ala. 614, 103 So.

682 (1925); Corona Coal & Iron

Co. v. Callahan, 202 Ala. 649,

81 So. 591 (1919); Porter vy,

Louisville & Nashville RR, 202

Ala. 139, 79 So. 605 (1918); E.

E. Yarbrough Turpentine Co. vy.

Taylor, 201 Ala. 434, 78 So.

812 (1918); Thompson Vv.

Richardson, 96 Ala. 488, 11 So.

778 (1892); Kennedy v. State,

85 Ala. 326, 5 So. 300 (1888).

In ruling that Kimberly Hooper's prior

testimony could be considered as substantive

24

evidence the Alabama Supreme Court stated:

"We think the Federal Rule is agood rule,

that it does not substantially prejudice the

rights of a defendant to a fair trial, and

that it fosters a search for the truth."

Hooper v. State, So.2d (ATA. «

December 14, 1990). However, it is

Petitioner's position that this approach

places in jeopardy his rights to due process

of law and equal protection of the law as

guaranteed him by the Fifth and Fourteenth

Amendments to the United States Constitution.

The Petitioner would point out that

unquestionably the status of the law in

Alabama in September, 1988, at the time of

his trial, was that prior inconsistent

statements of a withwes used to impeach that

witness are not substantive evidence. A jury

was Sworn andthe State produced as many

witnesses and as much evidence as it could.

the State's case, there

Wa yuestion but that with the afore-

mentioned tatus of Kimberly Hooper's prior

testimony, the State failed to make out a

prima facie case. The Petitioner was

therefore acquitted of both charges by the

lack of evidence and, but for the errors of

the trial court in improperly ruling that

Kimberly Hooper's prior testimony could be

considered as substantive evidence in

Submitting the case to the jury and in

charging the jury to that effect, Petitioner

would have been acquitted. The Alabama Court

of Criminal Appeals so ruled in Hooper vy.

State [Ms. 3 Div. 91, March 30, 1990],

So.2d _—_—sSWd({AXla.Crim.App. 1990).

However, two years after trial the

Alabama Supreme Court changed the law and

applied it back two years to supply the

evidence needed to convict Petitioner. The

26

State was well aware, prior to the Hooper

trial, that under established Alabama law,

Kimberly Hooper's prior testimony could not

be used as substantive evidence. Petitioner

claims that the ruling by the Alabama Supreme

Court changed the law to convict the

Petitioner two years after his trial and has

the same effect as an ex post facto law, and

further deprives him of due process of law.

The prohibition against "ex post

facto" laws, of course, comes from Article I

of the United States Constitution. The

United States Supreme Court in an early case,

Calder v. Bull, 3 U.S. 386, 1 L.Ed 648 (1798)

defined an "ex post facto" law as:

ist. Every law that makes an

action done before the pa_sing

of the law, and which was

innocent when done, criminal;

and punishes such action. 2nd.

Every law that aggravates a

crime or makes it greater than

it was, when committed. 3rd.

Every law that changes’ the

punishment, and inflicts

greater punishment, than the

27

law annexed to the crime when

committed. 4th. Every law

that alters the legal rules of

evidence, and receives less or

different testimony, than the

law required at the time of the

commission of the offense, in

Order to convict the offender.

Calder, supra, at 390.

The United States Supreme Court, in

its recent decisions of Miller v. Florida,

482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2a 351

(1987) and Weaver v. Graham, 450 U.S 24, 101

S.Ct. 960, 67 L.Ed.2d 17 (1981), has

interpreted this provision to require that

two elements be met for a law to be ex post

facto: "It must be retrospective, that is,

it must apply to events occurring before its

enactment, and it must disadvantage the

offender affected by it." Weaver, supra, 450

U.S. at 29, 67 L.Ed.2d at 23.

The Petitioner contends” that the

ruling by the Alabama Supreme Court that.

Kimberly Hooper's prior testimony could be

28

considered substantive evidence two years

after his trial altered Alabama's rule of

evidence pertaining to the inadmissibility of

prior statements of witnesses, and as a

result, make different evidence admissible

than not only On the date of the commission

of the offense, but at the date of the actual

trial resulting in the conviction of the

Petitioner. Clearly, this ruling by the

Alabama Supreme Court applies directly to the

Petitioner's trial prior to its ruling and

further, it obviously works to the

disadvantage of the Petitioner.

Although, generally it has been held

that the prohibition of ex post facto laws

applies primarily to the legislative branch,

the United States Supreme Court stated in

Marks v. United States, 430 U.S. 188, 97

S.Ct. 990, 51 L.Ed.2d 260 (1977). that:

.-- [t]he notion that persons

have a right to fair warning of

the conduct which will give

29

rise to criminal penalties --

is fundamental to our concept

to constitutional liberty.

See, United States v. Harriss,

347 U.S. 612, 74 S.Ct. 808, 98

L.Ed.2d 989 (1984); Lanzetta v.

New Jersey, 306 U.S. 451, 59

S.Ct. 618, 83 L.Ed. 888 (1939).

As such, that right is

protected against judicial

action by the Due Process

Clause of the Fifth Amendment.

Marks, Supra, at €39 ©.8. at

188, 51 L.Ed.2d at 265.

The United States Supreme Court

continued by quoting from its earlier

decision in Bouie v. City of Columbia, 378

U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894

(1964):

[A]n unforeseeable judicial

enlargement of a criminal

statute, applied retroactively,

Operates precisely like an ex

post facto law, such as Article

I, § 10, of the Constitution

forbids.... If a state

legislature is barred by the Ex

Post Facto clause from passing

such a law, it must follow that

a State Supreme Court is barred

by the Due Process Clause from

achieving precisely the same

result by judicial

construction. Bouie, Supra, at

353-354, 84 S.Ct. 1697, 12

30

L.Ed.2d 894.

In Marks, Supra, the United States

Supreme Court ruled that the due process

clause of the Fifth Amendment precluded the

retroactive application of the standards for

obscenity enunciated in Miller v. California,

413 U.S. 15, 93 &.Ct. 2607, 37 L.Bd.2d 419

(1973) to persons indicted for crimes

occurring prior to that decision. In Bouie,

Supra, ‘the ~-United States Supreme Court

reversed convictions for criminal trespass

because the South Carolina Supreme Court

changed its interpretation of the construc-

tion of that State's criminal trespass

statute after the commission of the alleged

offense. See, Rahe v. Washington, 405 U.S.

313, 92 &.Ct. 993, 31 L.84.20 256 (1970). in

so ruling, in Bouie, Supra, the United States

Supreme Court stated "[t]he basic due process

concept involved is the same as’' that which

31

the court has often approved in holding that

an unforeseeable and unsupported state court

decision on a question of state procedure

does not constitute an adequate ground to

preclude this Court's review of a_ federal

question." Boule, Supra, at 378 U.S. .

84 §.Ct. at , 12 L.Ed.2d at 895.

Therefore, the Petitioner contends that the

ruling by the Alabama Supreme Court changing

Alabama's rule regarding prior inconsistent

Statements not only after the date of the

alleged crime, but two years after his trial

where the evidence should have been legally

insufficient for the case to have been

submitted to the jury is tantamount to an ex

post facto law and is a violation of his due

process rights.

Petitioner further recognizes that

this Court has held that mere procedural

changes are not considered ex post facto

>

recoc

|

3

nN1lZeC,

a3

affect substantive rights of criminal

defendants that they run afoul of the ex post

facto provision in Article I of the United

States Constitution and the Due Process

Clause of the Fifth and Fourteenth

Amendments. In Walker v. State, 433 So.2d 69

(Ala. 1982), the Alabama Supreme Court

recognized such an exception. In doing so,

the court quoted Substantially from the

United States Supreme Court decision, Beazell

v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed.

216 (1925):

And there may be procedural

changes which operate to deny

to the accused a defense avail-

able under the laws in force at

the time of the commission of

his offense, or which otherwise

affect him in such a harsh and

arbitrary manner as to fall

within the constitutional

prohibition....

Just what alterations to proce-

dures will be held to be of

sufficient moment to transgress

the constitutional prohibition

cannot be embraced without a

-“general formula or stated in a

34

general proposition. The

distinction is one of degree.

But the constitutional provi-

sion was intended to secure

substantial personal rights

against arbitrary and oppres-

sive legislation.... Walker,

supra, at 473 (quoting Beazell

vy. Ohio, 269 U.S. 167, 171, 46

3.Cct. 68, 69, 70 LBd. 216).

In Walker, supra, the question for the

court was whether legislation repealing a

law, which made statements made by children

while in the custody of law enforcement

officers admissible, was in the category of

ex post facto legislation. The defendant,

Roy Walker, who was seventeen years old at

the time of the commission of the offense,

had confessed, without the advice of counsel,

to a police officer on March 30, 1981. The

legislation repealing the above described law

became effektive on April 28, 1981. At some

point thereafter, Walker was tried, his

previously inadmissible confession was ruled

admissible, and he was convicted.

35

The Alabama Supreme Court, stating

that the application of the rule against ex

post facto legislation must be applied ona

case by case basis, concluded as follows:

"Suffice it to say that, here, where guilt or

innocence turns on the application of the

repealed law, therefore affecting and dis-

advantaging the defendant in the most

Substantial manner possible, the odious

effect thereof compels us to find it to be ex

post facto." Walker, supra, at 473.

Petitioner contends that it is clear

in this case that his guilt or innocence

turned on the ruling by the Alabama Supreme

Court on the State's request to change the

existing Alabama law that prior inconsistent

statements could not be considered as_ sub-

Stantive evidence. The prejudice to the

Petitioner is clear. In every circuit in the

State of Alabama for the last one hundred

,

36

years, the law on this subject was that prior

inconsistent statements used for impeachment

were not substantive evidence. When the

prior fact situations have arisen, it must be

assumed that the trial courts followed

established precedent and SO ruled.

Therefore, the Petitioner was convicted

solely because of the capricious) and

arbitrary ruling of the Circuit Court of

Escambia County, Alabama at the behest of the

State of Alabama when the time honored

doctrine of stare decisis demanded that the

previously cited controlling case law be

followed. The Alabama Supreme Court, by its

opinion on December 14, 1990, condoned and

even advocated that ruling and as_ such,

yiolated Petitioner's constitutional rights.

The Petitioner is charged with two

counts of rape against his natural daughter.

The Petitioner would agree that acts of

37

sexual abuse directed against one's own child

is a particularly heinous and inhuman

offense. Petitioner would further agree

that, unfortunately, sexual abuse is a

problem for society that has become more and

more widespread. Fortunately, recognition

that something needs to be done about it has

also been forthcoming. Recently, this Court

has stated "child abuse is a problem of

disturbing proportions in today's society.

Just last term, we recognized that '[c]hild

abuse is one of the most difficult problems

to detect and prosecute, in large part

because there are often no witnesses except

the victim.' Pennsylvania v. Ritchie, 480

U.S. 39, 60, 107 S.Ct. 989, 1003, 94 L.Ed.2d

40 (1987)." Coy v. Iowa, U.S. ’

108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988).

However, having said this, the

Petitioner would like to insure that such

38

concern plays no part in this Court's

decisi-* making process. It is obvious to

Petitioner that the societal concern for the

prevention and punishment of sexual abuse has

played a role in his case from the moment his

daughter, Kimberly, a thirteen year old child

with a history of emotional problems, told

some friends at school that her father had

raped her. Petitioner believes such was also

obvious to Alabama Supreme Court Justice

Reneau Almon, who wrote in his dissenting

opinion:

If the defendant in fact com-

mitted the offenses for which

he has been convicted, his

conduct is most certainly both

legally culpable and morally

reprehensible. It is because

of the emotional reaction that

Such acts in gender, coupled

with our natural zeal to pro-

tect children and to. punish

those who harm them, that

courts must be especially care-

ful to remain objective when

presiding over or reviewing

cases of this nature. Hooper

Vv. State, So.2d

(1991).

The Petitioner would simply like for

this esteemed Court to decide whether it is

constitutionally permissible for the Alabama

supreme Court to rule, altering a_ rule of

evidence over one hundred years old, and

apply that ruling retroactively to, in

effect, convict the Petitioner, after he

Should have been acquitted due to a lack of

evidence. The fact that he is charged with

the rape of his daughter has no significance.

The Petitioner believes that said ruling by

the Alabama Supreme Court violated his due

process rightS guaranteed him by the Fifth

and Fourteenth Amendments of the United

States Constitution and had the effect o

ex post facto law which is prohibited by

Article I, § 10 of the Constitution.

40

CONCLUSION

The petition for writ of certiorari

should be granted and the Petitioner's

conviction in the Circuit Court of Escambia

County, Alabama _ should be reversed and

rendered due to: <a lack of Matt lelent

evidence.

The Petitioner is respectfully

requesting that this Court safeguard his

rights not to be subjected to an ex post

facto law in violation of Article I of the

United States Constitution and his rights to

due process of law as guaranteed by the Fifth

and Fourteenth Amendments to the United

tates Constitution.

DATED at Evergreen, Alabama this 6th

day of May, 1991.

Respectfully submitted,

Paul M. Harden

ATTORNEY FOR PETITIONER

417 Rural Street

Evergreen, Alabama 36401

205/578-4746