# Petition for Writ of Certiorari — Hooper v. Alabama > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_2073%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1991 - **Citation:** 501 U.S. 1232 ## Text 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 ——————— -> 0 MS cre p- 3 0 - (?t mm 72 6 b 100 Grr. Q ms 6¢ oO ad | 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: