Appendix — Stephens v. Alabama
Supreme Court brief1991
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ms ; Supreme Court, U.S,
91-66 FILED
No. 91- JUL 8 1991
OFFICE OF THE CLERK
In The
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1991
VIC OR STEPHENS,
Petitioner,
—against—
THE STATE OF ALABAMA,
Respondent.
On Writ of Certiorari To The
Supreme Court of Alabama
APPENDICES D-E
THOMAS W. EVANS
Counsel of Record
THOMAS N. KENDRIS
RICHARD B. BRUALDI
MUDGE ROSE GUTHRIE
ALEXANDER & FERDON
180 Maiden Lane
New York, New York 10038
(212) 510-7000
Counsel for Petitioner
Victor Stephens
July 8, 1991
APPENDIX D
Circuit Court of Hale County, Alabama
Direct Examination of Charles S. Stone by Prosecution
Stephens Trial
Record 26-38
CHARLES S. STONE
called on behalf of the State, was duly sworn and testified
as follows, to-wit:
DIRECT EXAMINATION
By Mr. Sullivan
State your name, please.
Charles S. Stone
How are you employed, sir?
Special Agent with the Georgia Bureau of Investigation.
Oo - © 2? 6
How long have you been with the Georgia Bureau of
Investigation?
Over 14 years.
Q__ And what is your position or rank, please, sir?
A _ Right now, I’m an Assistant Special Agent in charge of
Special Prosecution Task Force.
Q All right. And you’re with the Georgia Bureau of
Investigation?
D-2
Do > OB > OB >
Yes.
Drawing your attention to an individual by the name of
Victor Stephens, did you have occasion to have a conver-
sation with him on or about January 23rd?
Yes, sir; I did.
Where was that conversation?
At the Carroll County Jail, Investigative Office Section.
That’s January 23, 1986?
Yes, sir. Approximately 3:40 p.m.
All right. And Carroll County, that’s Carroll County,
Georgia; is that right?
Yes, sir.
All right. At the time you talked to Mr. Stephens, who
was present, sir?
Myself and A.B.I. Agent, Ed Traylor.
All right. Now prior to having a conversation with him on
January 23, 1986, at the Carroll County Jail, did you
have an occasion to read him his Miranda Rights, sir?
I read it from my Waiver card.
All right. And specifically, if you would, please tell the
Court what rights were read to him. Now this is from a
card; is that correct?
D-3
Yes.
“You have a right to remain silent. Anything you say can
and will be used against you in a court of law. You have a
right to talk to a lawyer and have him present with you
while you’re being questioned. If you cannot afford to
hire a lawyer, one will be appointed to represent you
before any questioning. You may decide at any time to
exercise these rights and not answer any questions or
make any statements.”
All right. Now, besides yourself and Mr. Traylor, was
anybody else present with Victor Stephens?
No.
What was the condition of Mr. Stephens at the time the
statement was taken, sir?
Mr. Stephens was lucid. He was responsive to
questioning. He answered that he understood his rights.
He appeared to be physically normal with the exception
that he was suffering from a gunshot wound to the hand.
He was in the custody of the jail and he was a hospital
inmate. He was incarcerated in the jail. Again, he was
very lucid.
All right. Did he appear to be under the influence of any
drugs or alcohol?
No, sir; he did not.
All right. Now after his rights were read to him verbally,
was there also a Miranda form signed, sir?
No, sir; not at this interview. There was on the 25th.
All right. Now prior to taking a statement from him, did
you or anyone in your presence make any promises to him
in order to obtain a statement from him?
No, sir; we did not.
Prior to obtaining a statement from him did you or anyone
in your presence make any threats to him in order to
obtain a statement from him?
No, sir; we did not.
Prior to obtaining a statement from him, did you or
anyone in your presence make any inducements in order
to obtain a statement from him?
No, sir.
Prior to obtaining a statement from him, did you or
anyone in your presence tell him it would be any better or
worse in order to obtain a statement from him?
No, sir.
All right. Now after his rights were read to him, did he
agree to make a statement?
Yes, sir; he did. He answered that he understood his
rights.
All right. And how was this statement taken, sir?
It was taken — I made notes myself and Agent Traylor
made notes per our usual policy. I go back and dictate
D-5
any notes I have and they’re transcribed into an
investigative summary. This is on the interview on
January 23rd. On January 25th, that interview, I took a
handwritten statement from him.
All right. Now concerning this verbal statement, after
you made your notes concerning this interview, was it
presented back to Mr. Stephens for his signature of the
January 23rd statement?
No, it was not.
All right. Now concerning that statement, what did he
tell you on that occasion?
We questioned him concerning how he initially got shot.
He stated that he and Christopher Starks had been riding
around. He stated he did not know exactly where they
were, but he did know they were in Alabama. I explained
to him about the armed robbery murder that occurred
here in Hale County and at that time he admitted that he
and Chris Starks were involved in the shooting. He stated
that he was shot by one of the men with a shotgun when
he walked in. He stated he didn’t know who shot first and
he didn’t know why the shooting went down. He stated
that it was Chris Starks’ idea to rob the store. He also
related he had been taking cocaine and LSD prior to the
robbery and could not remember all of the details. I ques-
tioned him concerning how much, what kind of drugs he
had taken and he related he bought a couple eight balls of
cocaine and some acid or LSD. When I questioned him
about the details of the robbery and murder, he related
there were two men in the store. One white man and one
black man and it was the white man that had shot him
with the shotgun. He related — I questioned him
concerning dropping a .25 caliber pistol that was
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>
recovered at the scene. He stated he dropped it when he
was shot and he also related that they had been in Chris
Starks’ black Nissan truck. When I explained to him
during the search of the truck we had uncovered some
food stamps that had been identified as coming from the
robbery and murder and that the weapons had been
matched ballistically, and I’m quoting now, he says, “You
have it just like it was. I don’t want to talk about killing
them two men anymore.” He stated he knew he was going.
to die and that I could go ahead and put him in the elec-
tric chair. At which time, the interview was concluded.
All right. Any other conversation with him on the 23rd?
No.
Now that interview was at what time, sir?
Approximately 3:40 p.m.
All right. How long did that interview last, as best you
can remember?
Best of my recollection, probably 45 minutes to an hour.
All right. Now your next conversation with Mr. Stephens
was on the 25th; is that correct?
Yes, sir.
All right. Drawing your attention to January 25, 1986,
did you have an occasion to have a conversation with him
at that time?
Yes, I did.
D-7
QO + HD
> O + DH PK
All right. And where was that conversation and who was
present?
Again, it was in the Carroll County Jail. Myself and
Chief Deputy Dennis Holloway — excuse me, Chief
Investigator.
Now that was at the Carroll County Jail; is that correct?
Yes, sir.
All right. And what time did that interview take place
and was anybody else present besides Mr. Stephens,
Mr. Holloway, and yourself?
No, sir.
All right.
It took place at approximately 2:25 p.m.
All right. Now on that occasion, were his rights read to
him prior to taking the statement?
Yes, sir; from the Miranda form.
Do you have a copy of that or is that the original?
This is a copy.
All right. Where is the original.
It was introduced as evidence in the Defendant’s prior
trial in Randolph County.
Q__ All right.
MR. SULLIVAN: Judge, we expect at the time of
trial we'll have that original.
that?
MR. GREENE: You want me to make a copy of
MR. SULLIVAN: Yes.
MR. MORRIS: I would like to have a copy of his
statement.
(Whereupon State’s Exhibit No. 1 was marked for identi-
fication by the reporter.)
Q
(Continuing:) I show you what is marked as State’s
Exhibit 1 for the purpose of this hearing. I ask you if you
recognize that?
It’s the Xerox copy of the statement I obtained on
January 25, 1986 from the Defendant.
All right. Now drawing your attention first to page one,
what is that, sir?
This is a Miranda Waiver form that I utilized at the jail.
The place is Carrol County Jail and the date is January
25, 1986. The time is 2:25 p.m.
“Before we ask you any questions, you must understand
your rights.
You have the right to remain silent.
D-9
Anything you say can and will be used against you in a
court of law.
You have the right to talk to a lawyer for advice before we
ask you any questions and have him with you during
questioning.
If you cannot afford to hire a lawyer, one will be
appointed for you before questioning, if you wish. If you
decide to answer questions now without a lawyer being
present, you would still have the right to stop answering
any questions at any time.
You also have the right to stop answering at any time
until you talk to a lawyer.”
Then it says, “Waiver of Rights.
I read the statement of my rights and I understand what
my rights are. I am willing to make a statement and
answer questions. I do not want a lawyer at this time. I
understand and know what I am doing and no promises or
threats have been made to me and no pressure or coercion
of any kind has been used against me.” It’s signed,
“Victor Stephens,” witnessed by myself and Dennis
Holloway.
All right. Now concerning that document that you just
read from, sir, Victor Stephens’ signature, I believe you
stated, is on that document?
Yes, sir.
Were you present at the time his signature was placed on
that document?
D-10
QO >» AD YP
Yes.
And do you see Mr. Stephens here today, sir?
Yes, sir; he’s seated right there.
Is that the same individual that you took your verbal
statement from on January 23, 1986?
Yes, it is.
All right. At the time that he signed that Waiver of
Rights, that Miranda form, sir, what was his condition on
that occasion?
He was dressed in, I belive, inmate clothing.
Carroll County Inmate Jail clothing. He was responsive
to questioning. He was lucid and he didn’t appear to be
under the influence of drugs or alcohol. He was afforded
an opportunity to go to the restroom and was offered
coffee and water, I believe, and in general, he appeared
receptive to questioning.
All right. Did he agree to make a statement?
Yes, sir; he did.
Prior to obtaining a statement from him on that occasion,
did you or anyone in your presence make any promises to
him in order to obtain a statement from him?
No, sir.
D-11
> O + AD SP
Prior to obtaining a statement from him, did your or
anyone in your presence make any threats to him in order
to obtain a statement?
No, sir.
Prior to obtaining a statement from him, did you or
anyone in your presence make any inducements to him in
order to obtain 4 statement from him?
No, sir.
Prior to obtaining a statement from him, did you or
anyone in your presence tell him that it would be better or
any worse in order to obtain a statement from him?
No, sir.
Did he make a statement, sir?
Yes, sir; he did.
And how was that statement taken?
The statement was, as he told it to me, I wrote it down.
I let him read it and sign it.
All right. At the time that he had the opportunity to read
it and sign it, was it read to him?
I read sections of it, I believe, and then I presented him
with the compieted thing when we finished. He looked it
over and initialed some mistakes I had made on it. We
struck through it and he initialed it and gave it back to
me.
D-12
©
Oo -— ODO &— DA © HD PS
All right. He had the opportunity to make any changes
that he saw fit in that statement?
Yes, sir.
Did he do so?
No. Other than initial where I struck through some
words, he was speaking faster than I could write and I
struck through a couple words. I asked him to initial any
mistakes or corrections.
All right. Did he ask for any changes to be made in that
statement?
No, he did not.
All right. Did he sign that statement?
Yes, he did.
And what was that — was that done in your presence?
Yes, sir.
And who witnessed that statement?
Myself and Dennis Holloway.
All right. Now concerning State’s Exhibit No.1, what
statement did he give you on January 25, 1986 in Carroll
County, Georgia, sir? |
“Statement of Victor Stephens.
D-13
The only two robberies I ever did with Christopher Starks
(Peabody) were in Alabama. I don’t know anything about
Robert Saxons murder.
It was Peabody’s idea to rob the store the other night near
Wesdo. He shot the man with a .22 pistol. I don’t know
how much money we got total. Terry stayed at the car. I
stayed on the outside and Peabody went in. I got a little
over $200. Terry got 30 something. When we left the
store Peabody got in the trunk of my car and we left. We
crossed a bridge on the way back and threw out the
checks and some beer cans. Me and Terry went home
after that.
The other robbery I just walked into the store after
Peabody went in. He had been in a while so I went in to
see what was happening. When I walked in, the white
man started shooting with a shotgun. I just pulled out my
pistol and started shooting. We left and came back to
Georgia. We went to Charlie Dalla’s house. Charlie
Dallas carried me to the hospital.
Q Did Peabody shoot anybody in Alabama?
A I emptied my .25 but I don’t know about him.
Q What kind of gun did Peabody have?
A He had a .22 and a .32. I had bought the .25 from
him on Friday or Saturday. He bought some .25
and .22 shells at Wal—Mart in Carrollton.”
Signed, “Victor Stephens.”
All right. And you saw him sign that document and your
signature is there as a witness?
D-14
ee —_
That’s correct.
All right. Now drawing your attention to January 28,
1986, were you present when a statement was taken?
No, I don’t believe so.
All right. So concerning Victor Stephens, those were the
only two statements you took concerning the case in Hale
County?
That’s correct.
All right. At the time that these statements were taken
from him on January 23rd and January 25th, was he
under arrest, sir?
Yes, sir.
What was he under arrest for?
I arrested him on a fugitive warrant out of Randolph
County, Alabama on a charge of armed robbery and the
Alabama equivolent of aggravated assault.
That was the purpose for him being in the Carroll County
Jail?
Yes.
MR. SULLIVAN: Pass the witness.
D-15
Circuit Court of Hale County, Alabama
Direct Examination of Charles Stone by Prosecution
Stephen's Trial
Record 612-627.
D-16
<n ene
CHARLES STONE
called on behalf of the State, was duly sworn and testified
as follows, to wit:
DIRECT EXAMINATION
BY MR. SULLIVAN:
ODO >» OD F-& A
State your name, please
Charles Stone.
And how are you employed?
Special Agent with the Georgia Bureau of Investigation.
And, Charles, how long have you been in law enforce-
ment, sir?
Been in law enforcement a little over 15 years. I’ve been
employed by the Georgia Bureau of Investigation for a
little over 14 years.
A little over 14 years?
Yes, sir.
Now GBI, that’s Georgia Bureau of Investigation, sir?
D-17
A Yes, sir; that’s correct.
(Whereupon the following proceedings were held in the
presence of, but out of the hearing of the jury:)
MR. MORRIS: If the Court will allow me, I want a
continuing objection rather than having to object to every aspect
of this line of questioning. I request of the Court and reserve —
I want to preserve the record that I object to any out-of-court
confessions or any statements made by the Defendant and if I
can protect the record that way, I would appreciate it.
MR. SULLIVAN: That’s fine.
MR. MORRIS: Then it would remove any necessity
for my objecting. I do not waive anything. I do not consent or
confess anything as to any aspect of the confessions.
MR. SULLIVAN: We understand.
THE COURT: You have a continuing line of
objection.
(Whereupon the following proceedings were resumed in
the presence and hearing of the jury:)
Q (By Mr. Sullivan, Continuing:) What duties do the GBI
A _ Basically, we serve in the same capacity as the ABI in
Alabama. We’re an assistance or joint agency for the
local and county law enforcement in the areas of general
criminal investigation such as homicides, robberies. We
work at the request of local law enforcement agencies,
Sheriff's department, police departments, judges. They
D-18
oe mnt
can request our services. We also have jurisdiction in
organized crime and narcotics.
Now, do you have a rank or position, sir?
Yes. I’m Assistant Special Agent in charge of, and the full
name is Special Prosecution Task Force and what it
entails is the investigation of organized crime and political
corruption in the State of Georgia. At the time of this
occurrence, I was working as a field agent in the
Thomaston field office in the area of homicide and armed
robberies.
Carroll County was in your area?
Yes, it was.
Now, drawing your attention to this particular matter
involving Victor Lamar Stephens, sir, did you have the
occasion to see him in Georgia after January 20, 1986,
sir?
Yes, sir. On January 21st, I saw Mr. Stephens in the hos-
pital in Carrollton, Georgia.
All right. That was the hospital in Carrollton, Georgia?
Yes.
What was the purpose of seeing him at that time?
MR. MORRIS: Objection to the purpose. He can tes-
tify to what he did.
Q
(Continuing:) What did you do?
D-19
Placed the Defendant under arrest.
Now that was at the hospital in Carroll County; is that
correct?
That’s correct.
Now after doing that, on a later date, drawing your atten-
tion to January 23, 1986, did you have the occasion at
that stage to take a statement from him, sir?
Yes sir; I did. On that date, myself and ABI Agent Ed
Trailer, interviewed the Defendant at the Carroll County
Jail in the investigative office section.
Do you see Victor Stephens in the courtroom here today,
sir?
Yes, sir; I do. He’s the black male seated at the table on
my right wearing a dark colored jacket and I believe with
@ striped shirt.
Let the record reflect that the witness has pointed to the
Defendant, Victor Lamar Stephens. Now I believe you
stated that you and Ed Trailer and the Defendant were
present at the Carroll Count Jail; is that correct?
Yes, sir.
Was anybody else present at the time that a statement
was taken from him, sir?
No, sir; not at this time.
When you first observed him at the Carroll County Jail,
what was his condition, sir?
D-20
A He was clothed in jail clothes. He had a bandaged left
hand. He was lucid. He was responsive to questioning.
He knew where he was.
MR. MORRIS: We object to these conclusicns on
behalf of the law enforcement officer. He can testify to what he
observed, he can’t testify to — —
THE COURT: State your question again.
MR. MORRIS: It was unresponsive. The question
was all right, the answer was not responsive.
Q (Continuing:) At the time you took the statement from
him, if you would, please tell the ladies and gentlemen of
the jury what his condition was, sir. Tell the jury what
you observed about him.
A He was mentally alert. I would ask him questions, “Do
you know where you are,” and this type thing and he was
responsive. He knew where he was. He knew who he was
talking to.
MR. MORRIS: Objection to him testifying to what
Mr. Stephens supposedly knew. He cannot testify to that,
Judge. We object to that question.
MR. SULLIVAN: He stated what he observed. I
think he can go into that.
MR. MORRIS: He’s testifying to what Mr. Stephens
knew. There’s no way for anyone to know that.
THE COURT: _I agree, there’s no way that he could
know what he knew. But he can testify that that’s what - —
D-21
that’s the way he appeared to him on that occasion. That’s
admissible.
Q = (Continuing:) Go ahead.
A Yes, sir. Before the interview, he was afforded an oppor-
tunity — we asked him if he needed to go to the
restroom. We offered him coffee, water, something to
drink. At this time, I advised him of his rights using a
standard GBI Rights Waiver card.
Q__s All right. Now you stated that you advised him of his
rights.
A Yes, sir.
Qs Specifically, please tell the ladies and gentlemen of the
jury how that was done.
A At this time, we’re issued standard American warning
cards. I took my card from my credential case and
advised him of his rights.
Q___ All right. And you read them from the card; is that
correct?
Yes.
Is that the card that you had on January 20, 1986?
Yes, sir; it is.
QO +» HD Pe
If you would, please tell the ladies and gentlemen what
rights were read to him on January 23, 1986, at the
Carroll County Jail.
D-22
QO -» AD PP
“You have the right to remain silent. Anything you say
can and will be used against you in a court of law. You
have the right to talk to a lawyer and have him present
with you while you’re being questioned. If you cannot
afford a lawyer, one will be appointed without cost to you
before any questioning if you wish. If you decide to
answer questions now without a lawyer present, you will
still have the right to stop answering at any time you
wish.” I asked him if he understood each of his rights as I
explained them to him and would he be willing to talk to
me.
When you asked him if he understood those, what did he
say, sir?
Yes, sir; he did.
And did he agree to talk to you at that time, sir?
Yes, sir; he did.
All right. Now you were aware as to the injury to his
hand; is that correct, sir?
Yes, sir; I was.
All right. Did he appear to be under the influence of any
drugs or aicohol on that occasion, sir?
No, sir; he was not. Again, he was responsive to
questioning. His pupils dilated and responded to light.
He was coherent in speech. He didn’t exhibit any
drunken staggering or anything of that nature.
All right. Concerning his hand, please, sir, did he ask for
any medical attention while you were talking to him?
D-23
No, sir; he did not.
Did you ever refuse him any medical attention or any-
thing, sir?
No, sir; I did not.
Now prior to taking the statement from him on January
23, 1986, did you or anyone in your presence make any
promises to him in order to obtain a statement from him?
No.
Prior to taking a statement from him, did you or anyone
in your presence make any inducements to him in order to
obtain a statement from him?
No.
Prior to obtaining a statement from him, did you or
anyone in your presence make any threats to him in order
to obtain a statement from him?
No, we did not.
Prior to your obtaining a statement from him, did you or
anyone in your presence tell him that it would be any
better or any worse in order to obtain a statement from
him?
No, sir; we did not.
And did he agree to make a statement?
Yes, sir; he did.
D-24
All right. Now was that a written statement or an oral
statement or what, sir?
This particular stage, it was oral statement. I was asking
questions and he was responding to the questions.
All right. Now concerning this statement that was taken
on January 23, 1986, if you would, please tell the ladies
and gentlemen how that statement was taken, sir. What
happened?
We began asking the Defendant concerning questions
about how he got shot. He stated that he and Christopher
Starks had been riding around prior to him getting
stopped. He stated that he didn’t know exactly where
they were, but he did know they were in Alabama. When
I explained the Hale County armed robbery/murder to
him, I related the general facts, case facts as I knew
them. He admitted that he and Christopher Starks were
involved in the shooting. Victor related that he was shot
by one of the men in the store with a shotgun when he
walked in. He stated that he did not know who had shot
first and he didn’t know why the shooting had gone down.
I asked him whose idea it was to pull the robbery and he
realted it was Christopher Starks’ idea to rob the store.
Victor also related he had been taking LSD and cocaine
prior to the robbery and therefore, couldn’t remember all
of the details. I questioned him concerning how much
drugs he had taken and what kind and he related that he
had taken — he bought a couple eight balls of cocaine in
a game room and some acid or LSD. When questioned
about the details of the robbery/murder, he related that
there were two men in the store. One was white and the
other was a black man and that it was a white man who
had shot him with the shotgun. Stephens related that at
this time that was when he dropped his .25 pistol. When I
D-25
questioned him concerning the vehicle they were riding in,
he related that it was Christopher Starks black Nissan
truck. I explained to him the food stamps and -— -
MR. MORRIS: _ I object to what he explained, what
the officer explained. Now the statement by the Defendant, I’m
not objecting to, but I am objecting to any statements made by
the officer.
MR. SULLIVAN: _ I believe he can state as to what
this conversation was between the two of them.
MR. MORRIS: That's my objection to it.
THE COURT: Overruled.
MR. MORRIS: We reserve an exception.
(Continuing:) Go ahead.
I explained to him that the food stamps taken out of the
truck came from the Hale County store and that the
weapons had been matched ballistically. He spoke up and
stated, and this is a quote from him, “You have it just like
it was. I don’t want to talk about killing them two men
anymore.” He then stated that he knew he was going to
die and for me to go ahead and put him in the electric
chair. At this time, the interview was concluded.
Q All right. Thank you. Now drawing your attention to
January 25, 1986, did you have an occasion or have a sep-
arate conversation with Victor Stephens on that occasior,
sir?
D-—26
Yes, sir. On Saturday, January 25, myself and
Investigator Dennis Holloway with the Carroll County
Sheriff's Office interviewed Victor at the Carroll County
Jail. He was again advised of his rights and signed a writ-
ten waiver.
All right. Now let me show you what is marked as State’s
Exhibit No. 18, and I ask you if you can recognize State’s
Exhibit No. 18.
Yes, sir. This is the original Rights Waiver I read from at
the jail which he signed.
All right. Now the signature on that document at the
bottom, sir, is whose signature?
The Defendant’s, Victor Stephens’s signature is at the
bottom and myself and Dennis Holloway.
There’s some additional writing on that document. Whose
writing is on there?
The upper right-hand side is the date, place and time of
the interview and that is my writing.
Ali right. Now I believe you stated that that was Victor
Stephen’s signature on that document?
That’s correct, yes.
Were you present at the time he placed his signature on
that document?
Yes, sir; I was.
D-27
And were you aware, as you have stated previously, that
he had a wound to his hand?
Yes, sir.
If you would, please relate as to how he signed that
document.
It’s my understanding that the Defendant was left
handed. He stated he was. He signed with his right hand,
his left hand was still bandaged when I obtained the
signed Rights Waiver.
All right. Now drawing your attention to State’s Exhibit
Number, I believe it’s 18.
That’s correct.
Specifically, what rights were read to him on January 25,
1986?
“Before we ask you any questions, you must understand
your rights:
1. You have the right to remain silent.
2. Anything you say can and will be used against you in
court.
3. You have the right to talk to a lawyer for advice before
we ask you any questions and to have him with you during
questioning.
4. If you cannot afford a lawyer, one will be appointed
without cost to you before any questioning if you wish.
D-28
5. If you decide to answer questions now without a lawyer
present, you will still have the right to stop answering at
any time “ou wish.
WAIVER OF RIGHTS
I have read this statement of my rights and I understand
what my rights are. I am willing to make a statement and
answer questions. I do not want a lawyer at this time. I
understand and know what I am doing. No promises or
threats have been made to me and no pressure or coercion
of any kind has been used against me.”
And it’s signed “Victor Stephens,” witness, myself and
Investigator Dennis Holloway.
All right. Now, I believe you stated you and Dennis
Holloway were present?
Yes.
Anybody else besides the two of you with Victor Stephens
on this occasion?
No, sir.
All right. And what was his condition and appearance on
this date?
Basically, the same as before. He was responsive to
questioning. He was agzia asked if he wanted to go to the
bathroom or to have coffee or water, that type thing. He
had no appearance of being under the influence of any
drugs, alcohol or anything of that nature. That was
almost a foregone fact since he had been incarcerated
D-29
prior to this and didn’t have access alcohol. He was
totally responsive and lucid.
Now drawing your attention again to the injuries to his
hand. Did he ask for any medical attention on January
25, 1986?
No, sir; he did not.
Was any medical attention refused to him by yourself or
Sgt. Holloway?
No.
Prior to taking the statement of January 25, 1986, did you
or anyone in your presence make any promises to him im
order to obtain that statement from him?
No, sir; we did not.
Prior to taking the statement from him, did you or anyone
in your presence make any threats to him in order to
obtain this statement from him?
No, sir.
Prior to obtaining a statement from him, did you or
anyone in your presence make any inducements to him in
order to obtain a statement from him?
No, sir; we did not.
Prior to obtaining a statement from him, did you or
anyone in your presence, tell him it would be any better or
any worse in order to obtain a statement from him?
D-30
QO -» ADA >
No, sir; we did not.
Did he agree to make a statement?
Yes, sir; he did.
All right. Now drawing your attention to January 25,
1986, how was that statement taken?
The statement was taken again and I was asking the ques-
tions and at this time, I was writing his responses down,
giving a narrative as I went. I wrote it in my hand.
I show you what is marked as State’s Exhibit No. 54, and
I ask you if you can recognize that, sir?
Yes, sir; I can. This is the statement I took.
All right. That’s the statement you took on January 25,
1986?
Yes, sir; it is.
All right. And I draw your attention to two separate
places on that document. There’s a signature on there.
Whose signature is that, sir?
This is the Defendant’s signature, Victor Stephens.
And were you present at the time he signed that docu-
ment, sir?
Yes, sir; I was.
And did he sign it in your presence?
D-31
~D
I fF © Ff? © PF? O PP
Yes, sir.
Now I also draw your attention to — there are several ini-
tials on there. Whose initials are they?
Those are the Defendants. I made spelling errors, gram-
matic errors. I struck those words. I asked the Defendant
when he read it to initial any mistakes and these are his
initials next to those mistakes.
Was Mr. Stephens given the opportunity to make any
corrections to that document?
Yes, sir.
Was he given the opportunity to read that document?
Yes, sir.
Was that document read to him?
Yes, sir; it was
And who read it to him?
Myself.
Now concerning the statement that he gave you — going
back to State’s Exhibit No. 54, the statement itself.
There’s part of it that is written and the other part is a
“Q” and “A”. If you would, explain that to me.
In order to clarify points that came up during the state-
ment at the end of the narrative, I asked him questions
and his answers are preceded with an “A”, and my
questions are preceded by a “Q”.
D-32
/
' Q _ Allright. Now drawing your attention to State’s Exhibit
No. 54 and — —
MR. SULLIVAN: Your Honor, we would like to offer
State’s Exhibit No. 54 into evidence at this time.
THE COURT: If there are no objections, it will be
adiuitted.
Q (Continuing:) If you would, please read the statement
Stephens gave on January 25, 1986.
A “The...robbery, I just walked into the store after Peabody
went in. He had been in a while so I went in to see what
was happening. When I walked in, the white man started
shooting with a shotgun. I just pulled out my pistol and
started shooting. We left and came back to Georgia. We
went to Charlie Dalla’s house. Charlie Dallas carried me
to the hospital.
Q_ Did Peabody shoot anybody in Alabama?
A I emptied my .25 but I don’t know about him.
Q What kind of gun did Peabody have?
A He had a .22 and .32. I had bought the 25 from
him on Friday or Saturday. He bought some .25 and
.22 shells at Wal—Mart in Carrollton.” Signed,
“Victor Stephen.”
D-33
All right. Now, Charles, besides those two statements,
you were not present during any other conversation with
Mr. Stephens; is that correct?
That’s correct.
D-34
Circuit Court of Hale County, Alabama
Direct Examination of William E. Traylor by Prosecution
Stephens Trial
Record 654-671
D-35
WILLIAM EDWARD TRAYLOR
called on behalf of the State, was duly sworn and testified
as follows, to wit:
DIRECT EXAMINATION
BY MR. GREENE:
Oo ©» DH YF A
>
State your name for the ladies and gentlemen of the jury.
William Edward Traylor.
Where are you employed, sir?
State of Alabama, Department of Public Safety. I'm a
Criminal Investigator.
And how long have you been in law enforcement, sir?
Probably 24 and a half years.
And in what capacity do you presently serve, sir?
I’m a State Trooper Sergeant.
And what are your duties with the State of Alabama and
the State Troopers?
My duties at this time for the past 14 years, have been as
a Criminal Investigator. As such, I investigate major
crimes for the State of Alabama, and aiso assist other
agencies such as the Sheriff's Department and Police
D-36
NL le nl ae en A ta + Omer oc Nake -
A ee La le med ti oem
Departments with investigations of major crime within
their jurisdiction.
Now, sir, specifically with reference to the case we’re here
about today concerning Mr. Pitkins and Mr. Bailey, on
January 20th, here in Hale County, did you assist or par-
ticipate in that investigation?
I did.
All right. Now you basically are assigned to what area of
the state?
I’m assigned to five counties in Eastern Alabama.
They’re Calhoun, Talladega, Clay, Randolph and
Clayburn. I work other parts of the state if need.
All right. Are you familiar with Carroll County,
Georgia?
Iam. It joins my area over there in Clayburn County and
Randolph County.
What towns or cities are there in Carrollton, Georgia?
The closest city is Bowden, Georgia, and the next city is
Carrollton, Georgia, which is the county seat.
And what towns or cities are there on the Alabama side of
it that you work for?
Wedowee.
Now in the course, sir, of your duties in this case, did you
have occasion to come into the presence of this Defendant
in this matter on the 28th of January, 1986?
D-37
DOD -» HD YP
I did.
Do you recognize him here today?
Yes, I do.
Have you ever had occasion to see or be around him prior
to that time sir?
Yes, sir; I did.
On the 28th, sir, where did you come into his presence?
At the Sheriff's Office and Jail, the Public Safety
Complex in Carrollton, Georgia.
Who else was present with you at that time, sir?
There was Chuck Gibson and Larry Yates and Officer
Boyd an Investigator with the Alabama Bureau of
Investigation.
All right. And do you know where Chuck Gibson was
assigned? What area he worked?
Chuck worked out of Selma which included Hale County,
Alabama.
And Larry Yates, do you know where he was assigned to
work?
Larry worked out of Demopolis. He also covers Hale
County.
D-38
i Owe
DOD >» BD FF A
Now on this occasion, sir, how did the Defendant come
into your presence? Did you get him or somebody bring
him out to meet with you or how did you get together?
He was brought to the investigator’s office there by the
jailer. We told the jailer that we needed to talk to him.
At that time, sir, did you introduce yourselves to him?
Yes, sir; I did.
And the other officers?
Yes, sir.
Did you go over, sir, what is generally referred to as his
Rights or his so-called Miranda Rights with him on that
occasion?
Yes, sir; I did.
How did you do that?
I advised him his rights right from a standard Department
of Public Safety DPS Form 30, it’s a standardized Rights
Waiver our department uses and furnishes us for use to
use.
All right. And did you, sir, on that occasion — would you
tell us how it was that you used that form. That is, you
read it and had him read it or how did you go about that?
I read it to him and I also had him read it and asked him
if he understood it and he said he did understand it and I
asked him to sign his signature that he understood it. He
D-39
> ODO © AD PP
signed his signature and I witnessed it and Corporal
Chuck Gibson witnessed it.
After you went over that with him, did you ask him if he
was willing to speak to you?
Yes.
Did he agree to speak with you on that occasion?
Yes.
Do you have the original of that form, sir?
No, sir; I believe that Investigator Chuck Gibson has the
original.
When did you begin interviewing the Defendant concern-
ing this case, sir?
You mean when did | first have the interview?
No, sir. This case on this occasion that we’re speaking of
on the 28th, what time of day did you begin that
interview?
That interview was started at 1:35 p.m. He was advised
of his rights at 2:45 from the Rights Waiver.
So you began on this case at 2:45; is that correct?
Yes, sir.
Now when did you conclude, sir, in your best judgment?
po
-
ms
——— eS a ne i Sie
I would say approximately 3:45.
All right. And during that period of time, sir, did you or
anyone in your presence or to your knowledge offer this
Defendant any promises or hopes of reward in order to get
him to speak to you concerning this matter on that
occasion?
No, sir.
Did you threaten, coerce or attempt to threaten or coerce
him or offer him any inducement on this occasion to get
him to speak to you?
No, sir; did not.
During this time, sir, were you made aware of or did it
come to your attention or did you recognize whether or
not the Defendant was suffering from the affects of any
drugs or alcohol during the course of this interview?
In my opinion, he was not because —— can I clarify when I
say that?
Let’s leave it in your judgment that he was not.
All right.
Now on that occasion, sir, were you familiar with any
injuries or wounds that he might have had?
I was.
And what was that?
D—-41
A gunshot wound to the left hand.
Q___ All right. Did he complain of any problem or difficulty
with that during this period of time?
No, sir; he did not.
And to your knowledge, was he on any medication or
drugs as a result of that injury at that time?
A No, sir; not to my knowledge.
Q ___ AIl right.
(Whereupon State’s Exhibits Nos. 72 and 73 were marked for
identification by the reporter.)
(Whereupon an off—the-record discussion was held between
counsel and the Court.)
THE COURT: Ladies and gentlemen, we'll have to
take up a matter outside your presence. That will give us an
opportunity to have a break. Ill give you a break for 15
minutes. Now I would admonish you again not to discuss this
case among yourselves or with anyone else or allow anybody to
discuss it with you.
(Whereupon the following proceedings were held out of the
presence and hearing of the jury:)
MR. GREENE: Previously, Judge, in private consulta-
tion with defense counsel, we’re both very aware of this particu-
lar problem and this was covered, I think, at the Motion to
Suppress hearing. But testimony previously is in the record that
the interview began at 1:35 p.m. on this occasion and that is a
true fact as has been truly testified to. Now there’s a Rights
Waiver which is Exhibit No. 10, presently identified as an
exhibit in this case. We represent as defense counsel is well
aware, that that interview deals with a robbery occurring in a
D-42
county, Randolph County, I think, and as such, we do not intend
and have never intended to go into it. My question in attempt-
ing to establish the length of time he was with the Defendant
was perhaps poorly framed, but in any event, it elicited an
answer saying that he started at 1:35. The interview in this case
began at 2:45, and for the record, Mr. Traylor, I would like to
ask you at this time, you did begin your interview with the
Defendant, Stephens, at 1:35 p.m., on the 28th; is that correct?
THE WITNESS: That’s correct.
MR. GREENE: And you did interview him at that
time and at the same place, same city, same circumstances that
you’ve just previously testified about?
THE WITNESS: That’s correct.
MR. GREENE: You went over his rights with him at
that time?
THE WITNESS: Yes, sir.
MR. GREENE: And you read him all the rights on the
page?
THE WITNESS: Yes, sir.
MR. GREENE: And he agreed to speak with you by
waiving those rights; is that correct?
THE WITNESS: Yes, sir. I advised him of another
Rights Waiver. There are two different cases.
MR. GREENE: Is that State’s Exhibit No. 10 that’s
here?
D-43
THE WITNESS: Yes.
THE COURT: Why can’t you just say you previously
advised him of his rights in another —
MR. GREENE _iI can do that.
MR. MORRIS: He advised him at 1:30 of his rights
and —
MR. GREENE: Advised him again at 2:45.
THE COURT: Just don’t give any reason for it. Just
you did twice and you did it once prior to that. I think that
cures it. You don’t want to leave the jury with the idea though
that you went on and carried on a conversation with this guy
and then decided later sometime —
MR. GREENE: After 1:35 and after the rights were
given, I think this is all already covered, but I think I need to go
over it. Were any threats, promises or hopes of rewards or coer- .
cions or inducements or any attempts on your part to force or
coerce or threaten him into speaking with you during the first
interview?
THE WITNESS: Was not.
MR. GREENE: All right. Y’all did, of course, discuss
another separate robbery after the 1:35 p.m. Rights Waiver?
THE WITNESS: That’s correct.
MR. GREENE: Then at 2:45 p.m., you began a dis-
cussion of the case we’re here about today.
THE WITNESS: That’s correct.
MR. GREENE: All right. And then, of course, a writ-
ten statement was taken in both matters.
THE WITNESS: That’s correct.
MR. GREENE: Now what is marked as State’s
Exhibit No. 11, this is the information or statement that was
taken pursuant to the other robbery in your county pursuant to
State’s Exhibit No. 10, the 1:35 p.m. waiver; is that correct?
THE WITNESS: That’s right.
MR. GREENE: Of course, these are pieces of evidence
that have been brought over from Randolph County.
THE WITNESS: That’s correct.
MR. GREENE: By the clerk.
MR. MORRIS: /You’re not offering these?
MR. GREENE: Only for the record to clarify the
record as to what the situation is.
THE COURT: _ Each time you investigate a different
event, you again advised him of his rights; is that basically
correct?
THE WITNESS: That’s correct. Because different
crimes, different jurisdictions, we felt that that should be on sep-
arate confessions and kept separate for the courts.
D-45
THE COURT: _I think it’s a true statement though
that prior to this advice of rights, you had previously advised
him of his rights; is that correct?
THE WITNESS: That’s correct.
THE COURT: _ All right.
MR. MORRIS: I do renew my objection for the
record. I object to the whole thing, starting with Monday.
THE COURT: Your objection is noted.
(Whereupon the following proceedings resumed in the presence
and hearing of the jury:)
Q (By Mr. Greene, Continuing:) Now, sir, showing you
State’s Exhibit No. 72, sir, I ask you if that is the Rights
Waiver you previously referred to , sir?
A It is.
Q___ And did you, on that occasion, sir, Put the handwriting on
that form?
A ___ I put my name on that form, yes, sir
All right. What is State’s Exhibit No. 72?
A That’s a standard Rights Waiver used by our department,
the Department of Public Safety. It advises the person of
their constitutional rights that’s spelled out by the courts
of the United States. It has a waiver part at the bottom
that you ask the person if they understand their rights and
if they’re willing to talk with you and give you a
statement.
ners SOA ele aha ahi otek te ews bs a eo oe
iota rina.
And this is the form you used on the occasion as
previously testified?
That’s correct.
And now you have, of course, signed it yourself, it bears
your name and witnessed by Corporal W. C. Gibson.
Yes.
Did you witness him sign it?
Yes.
And also signed “Victor Stephens” and dated January 28,
1986. Did you witness that signature?
I did.
And who signed that, sir?
The Defendant, Victor Stephens.
Did he also put the date on there, sir, or someone else put
it on there, do you recall?
I don’t recall who put it on there.
At the top it has, name, address, education, place, date
and time. Do you know who put that on there?
I believe that Chuck Gibson or Larry Yates put that
there, either one.
It was there on the form when you used it?
D-47
A Yes, sir.
Q Were those things observed in your presence?
A Yes.
Q__—s All right. Now, is this document, sir, in the same or sub-
stantially the same condition as it was when it was com-
pleted and signed and dated by you on that occasion?
It is.
All right.
MR. GREENE: We move the introduction of State’s
Exhibit No. 72.
THE COURT: _ It will be admitted.
(Whereupon State’s Exhibit No. 72 was offered and received in
evidence.)
Q (Continuing:) Now, previously, sir, you indicated that
this interview was begun at 1:35; is that correct?
A That’s correct.
And did you also go over the Defendant’s rights with him
at 1:35?
A I did.
And do you have, sir, a copy of that — excuse me. I show
you State’s Exhibit No. 10, sir, and ask you if that’s the
Rights Waiver you went over with the Defendant at that
time?
D-48
- RL hE hie ae ae Na ll eR aan tons Ble eth
A It is.
Q__s Ail right. And at that time, sir, did you execute that
Rights Waiver at that point in time?
AI did.
Q___ And did the Defendant execute it also?
A Yes, sir; he did.
Q _=«~OWere there any offers or promises or hopes of reward or
threats or coercion or intimidations offered to the
Defendant at all in order to get him to sign this Rights
Waiver?
A No, sir.
Is this document in the same or substantially the same
condition now that it was at the time it was completed at
1:35 p.m., on January 28, 1986?
A It is.
Q___ All right.
MR. GREENE: We move the introduction of State’s
Exhibit No. 10.
THE COURT: _ Be admitted.
(Whereupon State’s Exhibit No. 10 was offered and received in
evidence.)
Q
(Continuing:) Now, sir, on this occasion at 2:35, was in
fact, there an interview with the Defendant, Victor
Stephens?
D—49
QO + OH PP
>
Yes, sir; there was.
I show you State’s Exhibit No. 73, consisting of four
pages, and I ask you if you would, to examine that exhibit,
please, sir. Can you tell us what that is, sir?
Yes, sir. It’s the original copy of the statement taken
from Victor Stephens on the 28th.
All right. And now I said four pages, I'll correct that to
three pages.
Yes, sir.
Now ABI Investigator Yates, was he present also?
Yes.
Could you tell the jury, please, sir, how this interview was
conducted and how this written document, Exhibit No.
73, was prepared.
Victor Stephens was asked questions and he was asked to
tell us what happened on the Hale County robbery and he
relayed to us what happened and Larry Yates, investiga-
tor with us, was taking these notes down as he was telling
us. After this was reduced down to writing, it was gone
over with Victor Stephens and he signed it as being
correct.
All right. Now after it was completed by Officer Yates,
you and Gibson discussed it and did you go back over it
with him?
Yes.
D-50
Did you make any corrections or additions or initial it in
any way?
Yes, sir. Corrections were marked out and Victor
Stephens put his initials there to show that the corrections
were made in his presence.
All right. And he signed it and agreed that that was his
statement about what happened on that occasion?
Yes, sir; that’s right.
All right. Is this document, sir, State’s Exhibit No. 73,
now in the same or substantially the same condition as it
was at the time it was completed on that occasion by
Mr. Stephens and yourself and Mr. Gibson and
Mr. Yates?
It is.
All right.
MR. GREENE: We move the introduction of State’s
Exhibit No. 73, and ask permission for the witness to read the
statement to the jury beginning with the narration, leaving out
that portion having to do with the introduction — if that’s per-
missible, Mr. Morris. Would you like to see that?
Q
(Continuing:) If you would, sir, read the statement to the
jury, beginning with the paragraph that begins with a nar-
ration of events leaving out the introductory matters,
please.
“We went to New Orleans on Saturday night or early
Sunday morning the 18th or 19th. This is the first time I
D-51
had been to La. with Peabody (Starks). We left La. early
Monday morning 1/19/86. We came up the Interstate
and turned off the Interstate after we crossed into
Alabama.
After we came across a long bridge in Alabama, Peabody
kept saying, ‘he needed some money.’ After we crossed
the bridge, we pulled over to this store to get gas.
Peabody said ‘he needed some money.’ I told him I had
enough money to get us home.
When we pulled up to the gas pumps a white man came
out and pumped us $10 worth of gas. I asked the man if
he had a bathroom and he said ‘no.’ I got back in the
truck and smoked a cigarette. Peabody went into the
store. He stayed he the store a long time and I walked up
to the store and opened the door, then this white man shot
me in the hand. I fell to my knees and pulled my gun (.25
cal. automatic) out of my right rear pocket and started
shoting. I don’t even know if I shot anybody or not. The
white man was standing to my left when he shot me with
the shotgun. Peabody came running by me yelling ‘let’s
go, let’s go.” We ran out and jumped in the truck I didn’t
make it in time.
Going down the road Peabody asked me where my gun
was. I told him, ‘I left it at the store.’ He said you really
fucked us up this time.’ I kept telling Peabody I was hurt,
take me to the hospital and he wouldn’t do it. He gave
some gin and some rags to wrap my hand and then I laid
down and went to sleep.
After we got back to Georgia, Peabody took me by
Charlie Dallas’s house. Dallas took me to the hospital in
Bowdon, GA.
D-52
At the hospital I told my mother to get my coat and she
did. She also got some money, about $30 or $40 out of
my coat pocket.”
Signed, “Victor Stephens.”
All right. That was in fact the statement that was written
and y’all did complete that on that occasion with this
Defendant?
That’s correct.
D-53
Letter to Chief Judge Dewey Smith, Coweta Judicial Circuit,
July 25, 1989.
D-178
D-54 :
[Letterhead]
Hon. Dewey Smith, Chief Judge
Coweta Judicial Circuit
P.O. Box 623
Carrollton, Georgia 30117
RE: State of Alabama v. Victor Remar Stephens (murder case)
State of Alabama v. Christopher Starks (murder case)
Dear Judge Smith:
As you were previously made aware, sentencing hearings were
scheduled in the above causes for yesterday, Monday, July
24th. These hearings were held, and since you are away from
your office in conference, Judge Thigpen asked that I take this
means to let you know his sentencings in each case.
In the case of Victor Remar Stephens, Judge Thigpen sentenced
him to death.
In the case of Christopher Starks, Judge Thigpen sentenced him
to life without parole.
If you wish to discuss the above causes with Judge Thigpen fur-
ther, do not hesitate to contact me, and I will have Judge
Thigpen get in touch with you as soon as possible.
Very truly yours,
Dottie Greer,
Secretary to Hon. Charles A. Thigpen
/dbg
ce: Circuit Clerk, Hale County, Alabama
Circuit Court of Hale County, Alabama
Defense Counsel’s Opening Remarks
Stephens Trial, Penalty Phase
Record 908-912
D-56
PENALTY PHASE
DATE: July 24, 1989
BEFORE: HON. CHARLES A THIGPEN, Circuit Judge
(Whereupon State’s Exhibits Nos. 1, 2 and
3 were marked for identification by the
reporter.)
THE COURT: State ready?
MR. SULLIVAN: State’s ready.
THE COURT: Defense ready?
MR. MORRIS: Defense ready, Your Honor.
THE COURT: You may open.
MR. SULLIVAN: Your Honor, we’re here today
on the sentencing of Victor Remar
Stephens. As the Court knows from your
experience of trying this capital case, this
office has never asked you at any time to
override a jury verdict. Today, we're
doing that for the first time. When I was
looking through the aggravating and miti-
gating circumstances out of consideration
for the Court, the statutory mitigating and
aggravating circumstances, I was able to
look particularly at the mitigating
circumstances and was able to make a
D-57
determination that there’s not one
mitigating circumstance that fits
Mr. Stephens in this case. As the Court is
aware, there are seven statutory mitigating
circumstances. The history of violence of
Mr. Stephens is probably unparalleled in
this area. We'll introduce for the Court’s
consideration, five additional felonies
showing that in 1981 Mr. Stephens was
convicted of four burglaries and one theft
by receiving stolen property all in Carroll
County, Georgia. We have exemplified
copies here and we would introduce them.
We would like the Court to consider that
in our recommendation in effect to over-
ride the recommendation of life without
parole and sentence Mr. Stephens to
death.
MR. MORRIS: Your Honor, I'll be brief.
During the course of striking of this jury,
there were a number of venire members,
jury members that answered that they
either knew or had contact or knew of each
of the deceased. I believe the record would
reflect of those at least two to three people
sat on the jury itself. None of the venire
acknowledged knowing anything of
Mr. Stephens personally. This case was
tried, both aspects of this trial was tried.
None of the aspects that Mr. Sullivan
brought to the Court’s attention were kept
from the jury’s consideration when they
recommended that he be sentenced to life
without parole. The mere fact, I’m saying
this to the Court, is that I think it would
D-58
nt tna Tir ets pili
be certainly an unprecedented act for the
Court to invoke its own judgment when a
jury had every bit of the information avail-
able, coupled with the personal knowledge
of the deceased. None of which was avail-
able to the Defendant in this case.
We just merely ask this Court to
follow the dictates of the people of Hale
County, a cross-section that included
black and white and their wishes and their
recommendations to this Court that
Mr. Stephens’ life be spared and that he
be sentenced to life without parole. We
think the jury made that determination on
all of the circumstances and recommended
that to the Court and we would ask the
Court to merely follow the recommenda-
tion of the jury of not only the deceaseds,
but a jury of the peers of the Defendant.
MR. SULLIVAN: Your Honor, at this time, we
would like to offer for the Court’s consid-
eration, five prior felony convictions of
Victor Remar Stephens. First, is State’s
Exhibit No. 1, and it reflects a three-
count indictment including the sentencing
order that reflects three burglary convic-
tions showing in effect that he was repre-
sented by counsel, being a Charles
A. Lumpkin, Jr., Carroll County, Georgia,
and was sentenced to a period of eight
years to run concurrent with each other,
Counts I, II and III. Now this was on
January 16, 1981.
D-59
I would like to offer those for the
Court’s consideration.
I would like to offer State’s Exhibit
No. 2, showing that Mr. Stephens entered
a plea to burglary. He was also sentenced
pursuant to that and he was represented by
Charles A. Lumpkin, Jr., and he was sen-
tenced to a period of six years in the state
penitentiary in the State of Georgia.
I would like to offer State’s Exhibit
No. 2. I would also like to offer State’s
Exhibit No. 3, showing Victor Remar
Stephens was convicted of the offense of
theft of stolen property and that was also
in 1981 and sentenced to a period of six
years in the state penitentiary. He was
again represented by counsel, being
Charles Lumpkin, Jr. This was in Carroll
County, Georgia, and he was sentenced to
a period of six years in the state
penitentiary. He was again represented by
counsel, being Charles Lumpkin, Jr. This
was in Carroll County, Georgia, and he
was sentenced to a period of six years in
the state penitentiary. I would like to offer
those for the Court’s consideration at this
time.
MR. MORRIS: We object to those. The intro-
duction of those documents, Your Honor,
we object to.
THE COURT: Grounds.
MR. MORRIS: Judge, that those — that those
documents were available in the prior trial
to the jury as well as to the Court.
THE COURT: I believe it was admitted.
MR. MORRIS: It was admitted at that time. It
was not denied.
THE COURT: [Ill overrule. Be admitted.
MR. SULLIVAN: State has no further evidence
at this stage, Your Honor.
THE COURT: Further from the Defense?
MR. MORRIS: No, sir; Your Honor.
D-61
Supreme Court of Alabama
Petition for Writ of Certiorari and Brief of Appellant
Stephens Appeal
D-62
STATE OF ALABAMA JUDICIAL DEPARTMENT
IN THE SUPREME COURT OF ALABAMA
+ 7. + . * * s *
VICTOR R. STEPHENS, °
*
Appellant, °
*
vs. * SC Case No.
e
THE STATE OF
ALABAMA, °
*
Appellee. °
On Appeal from the Circuit Court of
Hale County, Alabama
Hon. Charles A. Thigpen, Judge
PETITION FOR WRIT OF CERTIORARI AND
BRIEF OF APPELLANT,
VICTOR R. STEPHENS
OF COUNSEL:
BLANCHARD L. MCLEOD, JR. J. PATRICK CHESHIRE
Attorney at Law Attorney at Law
P.O. Box 656 P.O. Box 2365
Selma, AL 36702-2656 Selma, AL 36702-2365
(205) 875-2282 (205) 872-6440 -
D-63
IN THE SUPREME COURT OF ALABAMA
VICTOR R. STEPHENS, * APPEALED FROM
Appellant, * THE CIRCUIT COURT
OF
. HALE COUNTY,
ALABAMA
a
Vs. ad
a
STATE OF ALABAMA, * SC Case No.
*
Appellee.
PETITION FOR WRIT OF CERTIORARI
Comes now the Appellant, Victor R. Stephens, by and
through his attorneys of record, Bleweherd L. McLeod, Jr., and
J. Patrick Cheshire, and petitions this Honorable Court for a
Writ of Certiorari to issue to the Court of Criminal Appeals in
the above styled cause under Rule 39 of the Alabama Rules of
Appellate Procedure, and in support thereof, assigns the follow-
ing, separately and severally, to—wit:
(1) Petitioner was convicted of the ‘hone of capital
murder in the Circuit Court of Hale County, Alabama on
December 17, 1987, and sentenced on July 24, 1989. The
Alabama Court of Criminal Appeals affirmed the judgment of
the trial court with opinion on August 3, 1990. An Application
for rehearing was filed on August 17, 1990, and was overruled
without opinion on September 21, 1990.
(2) With the application for rehearing, the Petitioner
presented additional and corrected statements of fact pursuant
to Rule 39 (k), ARAP, and requested the Alabama Court of
Criminal Appeals to add or correct said facts in its opinion on
re-hearing, which it failed to do. A copy of said additional and
D-64
corrected statement of facts are attached hereto and marked
Exhibit “A”, and incorporated herein by reference as if set out
verbatim.
(3) The Alabama Court of Criminal Appeals case number
is 2 Div. 738.
(4) The basis of this Petition for Writ of Certiorari is that
the decision of the Court of Criminal Appeals failed to ade-
quately address the issue of whether or not the prosecution per-
formed misconduct under the principles set forth in Ex parte
Branch, 526 So.2d 609 (Ala. 1987) and Batson v. Kentucky, 476
u.s. 79, 106 S.Ct. 1712, 90 L.Ed. 69 (1986), where the prosecu-
tion used 21 of its 22 peremptory strikes (95.45%) to strike
blacks from the jury venire.
Batson at page 1717 states, “(t]he Equal Protection
Clause (Amend. 14 U.S. Const.) guarantees the defendant that
the state will not exclude members of his race from the jury
venire on account of race.” Sections 1, 6 and 22, Ala. Const.
1901, combine to guarantee Equal Protection of the law.
Recently, the Alabama Supreme Court issued the opinion
of Ex parte Mary Williams, S.Ct. Case No. 89-597, released
June 22, 1990. In the Williams case, the Alabama Supreme
Court stated on page nine:
“With the prima facie case established, there is a
presumption that the peremptory challenges were used
to discriminate against black jurors, Branch, at 623; the
State then has the burden of articulating a clear, specif-
ic, and legitimate reason for the challenge that relates
to the particular case to be tried and that is
nondiscriminatory.” (emphasis added).
D-65
a
It is more than obvious in the opinion of the Alabama
Court of Criminal Appeals that the court sought any and every
means possible and totally disregarded the Batson, Branch, and
Williams guidelines to effectively deny your appellant Equal
Protection under the United States Constitution and the
Alabama Constitution.
Your appellant would specifically cite the opinion of the
Alabama Court of Criminal Appeals on pages cight and nine
wherein the court states as the total basis for the logic in dis-
qualifying the following jurors:
“8. Ms. Spence—sons had been involved
in ‘some very serious criminal offenses.’
9. Ms. Johnson—had been a defendant in
small claims court and been served with numerous
civil suits; appeared to be extremely responsive to
the defendant’s questions; also, the fact that she
was chewing gum was felt to indicate her lack of
respect for the seriousness of the proceedings.
11. Mr. Pratcher—although his per-
manent legal residence was in Hale County, he
was currently living and working in Atlanta,
Georgia; seemed to be interested in not serving on
a jury; also was wearing sunglasses in the court-
room; also, at some time during voir dire proceed-
ings, sat next to or appeared to have some sort of
relationship with a juror excused for cause because
of his views against capital punishment.
13. Ms. Shelton—prosecution found it
‘extremely strange’ that every juror from her small
community except her had heard something about
the crime since it occurred in that community;
also very insistent about giving her marital status
as separated.
15. Ms. B. Wilson—county sheriff was
acquainted with juror and recommended that she
D-66
be struck because she was ‘extremely anti-
establishment’ and because of belief that her hus-
band had been involved in some type of criminal
activity.
16. Ms. A. Harris—young, single, and
unemployed; knew nothing of the facts surround-
ing the case.
17. Mr. K. Williams—general appear-
ance was very rough and unkempt; also, like Juror
Pratcher, appeared to be involved with a juror
struck for cause because of his views against capi-
tal punishment.
18. Ms. Brown—husband a homicide
victim; however, sheriff's department was con-
cerned about her as a juror because of her belief
that her husband’s case had been mishandled.
19. Ms. Hayes—seemed totally removed
from the situation; felt that this might indicate
animosity on her part, since she worked at the
nursing home where the wife of one of the victims
now lived.
21. Ms. S. Harris—relatives had been in
trouble with the law.”
None of these strikes outlined above can in any way have
“clear, specific and legitimate reasons for the challenge that
relates to the particular case to be tried and that is
nondiscriminatory.” Branch, at 623 as cited in Williams at page
nine. Further, the Alabama Court of Criminal Appeals totally
disregarded its own Avery, Madison decisions as well as Branch
and Batson when it failed to even address the following point
raised by your appellant.
The justification for the State’s strikes ranges from ridicu-
lous (chewing gum, (R-390, 391), to the sublime (wearing
sunglasses, R—-391). However, in a// instances where the State
~—— oh.
D-67
indicated that it might have some information that was gained
by investigation prior to voir dire, the State never tried to inves-
tigate this information in any manner during voir dire. As the
court stated in Avery v. State, 545 So.2d 123 (Ala.Cr.App.
1988), “[t]he prosecutor could have resolved her suspicions on
voir dire, but she did not do so,” at page 127.
“A prosecutor’s failure to engage black prospective jurors,
‘in more than desultory voir dire, or indeed to ask them any
questions at all, before striking them peremptorily, is one factor
supporting an inference that the challenge is based on groups
bias.” ” People v. Turner, 42 Cal.3d 711, 726 P.2d 102, 230
Cal.Rptr. 656 (1986). Cited in Avery, supra, at page 127. As
the court affirmed in Madison v. State, 545 So.2d 94
(Ala.Cr.App. 1987) at page 99, “[a]s noted in Ex parte Branch,
526 So.2d 609 (Ala. 1987), the absence of voir dire questions
directed to the challenged jurors must be weighed against the
prosecution.” The prosecutor, in this instant case, had the right
of almost unlimited voir dire (within reason) to either confirm or
deny his suspicions. But, he mever chose to do so. Therefore,
one must assume the systematic group exclusion of blacks. The
very thing Batson sought to protect.
Additionally, the State justifies its strikes with reference
to chewing gum, (R-390, 391), and wearing sunglasses,
(R-391), upon its intuition. “Furthermore, intuitive judgment
or suspicion by the prosecutor is insufficient to rebut the pre-
sumption of discrimination.” Branch, supra, at page 623 citing
Batson, supra, at page 1723.
(5) The basis of this Petition for Writ of Certiorari is that
the decision of the Court of Criminal Appeals failed to ade-
quately address the issue of whether or not the trial court
abused its discretion in denying defendant’s Motion for Mistrial
_ based upon prosecutor’s comment during closing arguments that
' the attorney for the defendant was attempting to hide evidence
D-68
form the jury since such statement was ineradicably prejudicial
and imparted to the jury the impression that the defense counsel
was engaged in an illegal activity in denying the jury access to
all evidence in the case.
While it may be within the realm of fair comment for the
prosecutor to attempt to address points raised by the defendant’s
counsel in closing argument, to allow a personal attack upon the
veracity of counsel for the defendant is extremely prejudicial in
that it focuses the attention of the jury away from the facts in
dispute onto the personality and reputation of counsel.
(6) The basis of this Petition for Writ of Certioari is that
the decision of the Court of Criminal Appeals failed to ade-
quately address the issue of whether or not the State prosecutor
committed reversible error when he tried to impeach the
defendant for an offense for which he was not convicted.
The Court of Criminal Appeals used the Harmless Error
Rule in upholding this reversible error. But, how can the error
be harmless when the defendant testified for the mitigating cir-
cumstance of remorse and repentance of his previous life of
crime. Although it may be proper for the prosecution to cross
examine the defendant regarding prior criminal convictions, it is
extremely prejudicial to the appellant’s argument for the prose-
cution to address possible criminal activity that has never been
proven and of which the appellant has never been arrested.
(7) The basis of this Petition for Writ of Certioari is that
the decision of the Court of Criminal Appeals failed to ade-
quately address the issue of whether or not there was insuffi-
cient evidence adduced at trial to sustain a conviction as well as
a failure of the State to carry the burden of proof with regard to
the offense of capital murder: therefore, it was reversible error
for the trial court to deny the defense motion for a directed
verdict of acquittal at the conclusion of the State’s case, as well
D-69
the defense motion for a judgment of acquittal at the conclusion
of the trial.
The decision of the Court of Criminal Appeals hinges only
on the allowabililty of circumstantial evidence. The court
totally fails to acknowledge the dying declaration of the only
eyewitness to the offense. The court does cover in its statement
of the facts when it states on page seven:
“The only evidence presented by the defense was in the
form of testimony from Jessie Portis. Mr. Portis testi-
fied that he arrived at Bailey’s store after Mr. Bailey
and Mr. Pickens were shot. He leaned down and asked
Mr. Pickens if he could say what color vehicle the rob-
bers were in. According to Mr. Portis, Mr. Pickens
responded that the robbers were in a red vehicle. When
asked if the robbers were white or black, Mr. Pickens
stated, ‘white.’”
(8) The basis of this Petition for Writ of Certiorari is that
the decision of the Court of Criminal Appeals failed to ade-
quately address the issue of whether or not the death penalty
imposed by the trial court judge in this cause should be
reversed.
There is absolutely no justification stated in the August 3,
1990 decision of the Alabama Court of Criminal Appeals which
would provide any facts to the trial court that were not known to
the trial jury that would justify the reversal by the trial jury
when it imposed life without parole in this case.
(9) The basis of this Petition for Writ of Certiorari is that
the decision of the Alabama Court of Criminal Appeals failed to
adequately address the issue of whether or not death by
electrocution as applied by the State of Alabama constitutes
D-70
crue] and unusual punishment in violation of the Eighth and
Fourteenth Amendments to the Constitution of the Untied
States of America and Article 1, Section 15 of the Constitution
of the State of Alabama.
In light of recent developments concerning the recondi-
tioning of the Alabama electric chair as a result of the necessity
of using repeated shocks to bring about the death of the con-
demned individual which has been widely reported in the press,
the court should take judicial knowledge thereof.
(10) In light of the recent study of the United States
General Accounting Office, the Alabama Supreme Court should
consider the issue of whether or not the application of the death
penalty is discriminatory in nature, and, therefore, violative of
the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments of
the United States Constitution of America and the appropriate
provisions of the Alabama Constitution (1901). A copy of this
United States General Accounting Office report is annexed and
marked as Exhibit “B” to this Petition for Writ of Certiorari.
Because of this recently discovered evidence, your Petitioner is
presenting this issue in this Petition for Writ of Certioari and
will file a supplemental brief with reference to this issue.
WHEREFORE, your Petitioner respectfully requests that
after preliminary examination, this Writ of Certiorari be
granted and that this Honorable Court proceed under its rules to
review this matter complained of, and to reverse the judgment of
the Alabama Court of Criminal Appeals, and for such other
relief as your Petitioner may be entitled.
D-71
Submitted in support thereof is the Brief with Argument
of your Petitioner.
Respectfully submitted,
Blanchard L. McLeod
Of Counsel for Appellant
D-72
Exhibit “A”
STATEMENT OF THE FACTS
On or about January 20, 1986, a robbery took place in
Hale County, Alabama at Bailey’s Grocery Store located on
Highway 14, (R-167). During this robbery two men,
Mr. James R. Bailey, age 72 and Mr. Adam Pickens, age 82,
were killed, (R-166).
On January 21, 1986, Charles S. Stone of the Georgia
Bureau of Investigation, Dennis Holloway of the Carroll
County, Georgia Sheriff's Department, Chief Deputy
A. S. Manley of the Randolph County, Alabama, Sheriff's
Department and A.B.I. Agent Ed Trayler interviewed
Mr. Victor Ramar Stephens at the Carroll County Hospital, in
Carroll County, Georgia, where he was being treated for a gun-
shot wound to his left hand, (R-39). During the course of this
interview, Mr. Stephens stated to these representatives of law
enforcement from the States of Georgia and Alabama that he
had been shot the previous day at approximately 6:00 p.m. by an
individual named Dennis Johns. At that time, the interview was
terminated, (R-39, 40). Mr. Stephens was taken into custody
for suspicion of involvement in two robberies, one occurring in
Carroll County, Georgia, and the other occurring in Randolph
County, Alabama, (R-59). Subsequent interviews with
Mr. Stephens were held at the request of Mr. Stone and
Mr. Trayler at the Carroll County Jail on the days of
January 23rd and January 25, 1986, (R-27). During the
course of the interview that took place on January 23, 1986,
Mr. Stone stated that he did not recall whether or not
Mr. Stephens had requested Mr. Stone to aid him in getting
some relief for the pain he was feeling in his injured hand in
exchange for a statement concerning the offenses with which he
was charged, (R-41).
D-73
As a result of the statements acquired from Mr. Stephens
by Officer Stone and Trayler, Mr. Stephens was extradicted to
Hale County, Alabama and was subsequently indicted for the
capital murders of Mr. James R. Bailey and Mr. Adam
Pickens.
The following is the trenscription of the Batson motion,
argument of counsel and the justification to the Court for the
strikes of the black venire persons:
“Mr. Morris: Judge, I would offer to the Court, a brief,
or would bring to the Court’s attention, a motion previ-
ously filed. The Court is aware of Batson Motion, and
making it known to the Court that the basis of the
Batson Motion is that of the 22 jurors struck, which is
not including the alternate, the first 21 were black. The
other juror that was struck by the State was juror
number 22, which was their last strike and they struck
number 106, which was Mr. Wyatt. (emphasis added).
We feel like under the language, that it’s clear that
through the process of jury striking, that they have sys-
tematically excluded members of the biack race.
Further, for the record, my client (R-386) is black and
we feel like that is a violation of the Batson case.
THE COURT: What is the composition of the venire
total?
MR. GREENE: As I understand it, it’s seven white,
five biack.
THE COURT: The jury as struck is seven white and
five black.
MR. GREENE: I think so.
D-74
THE COURT: What is the composition of the venire as
a whole?
MR. GREENE: We've got it right here. Mr. Corley,
number 17 is a white male. Mrs. Ferguson is a white
female. Ms. Fondren, number 29, is a white female.
Mr. Brenstead, is a white male, Lyles is a black female,
Marks is a black female, 82 is a black male, 92, Travis,
is a black female, 94, Tucker, is a white female, and 96
is Beth Williams, and that’s a white female, and 101 is
Willie Williams, a black female, and the alternates are
Michael G. Harris, number 38, a white male, and
Mr. Tubbs, number 93, white male.
THE COURT: Who’s the last juror struck?
MR. GREENE: Number 106, Mr. Wyatt.
THE COURT: Last juror? The last juror, number 38,
(R-387) that was the last person struck, period, was
number 38, Michael G. Harris, by the State; is that
correct?
MR. MORRIS: That’s true, as an alternate.
THE COURT: All right. The composition of this jury
is seven and five. Now depending on the alternates, it
could be eight and four.
MR. GREENE: Eight and five if you keep the
alternate.
THE COURT: All right. You've made a prima facie
showing, justify your strikes. (emphasis added).
MR. GREENE: First of all, we did not attempt to
strike jurors solely because of their race. We did,
however, strike jurors for reasons I would like to state in
D-75
the record at this time. I'll try to take them in order and
state those reasons as best I can.
We struck juror number 68, Mr. Mickens, his position
on capital punishment, which, I think is already of
record.
We struck juror number 4, Mrs. Ball, on her position
on capital punishment.
We struck juror number 5, who’s also a Ball, as I under-
stand it. Mr. Ball, the information was that he had
answered affirmatively on drugs, that is, that he, or
some member of his family or (R—388) some personal
friend being so involved. The information also received
was that he was some sort of part-time preacher and
that his son had been in some serious trouble dealing
with drugs and/or criminal activity. That was from law
enforcement investigation. Finally, he indicated he did
not want to serve and would ask to be let off, as we
understood it. Now number 76 was our next strike, and
that was Mr. Patton, who had answered affirmatively
on our question concerning previous knowledge or associ-
ation of any type of criminal offense. Our office had
prosecuted him for night hunting. We seized his weap-
ons and sold them and he had also been convicted of a
DUI on other occasions.
Number 47 was a Margaret Hood, and we struck her
because she asked off and had quite a bit to say about
lack of transportation and inability to get here and she
was concerned and wouldn’t be able to pay attention,
etc. Finally, it seems as if she and her husband have a
history or problem in the child support court. Her hus-
band actually being prosecuted and even done some time
in the jail with reference to that. Of course, our office
handles the child support program. Now that was in
D-76
Perry County, there was (R-389) some type of
connection, a cousin or something. That’s the reason
we're so familiar with them.
Number 46 was a Mattie Hollifield. We struck her
because she had been arrested and charged with worth-
less checks and similar type offenses on several different
occasions.
We struck juror number 36, which was Carolyn Harris.
The information gathered during voir dire was that she
was young, single and unemployed and our information
in our investigation prior to that was that her brother is
a defendant or has been a defendant in a criminal case
which is being prosecuted.
We struck juror number 87, Vinie P. Spence. The
information was that her sons had been in some very
serious criminal! offenses. We just felt like she would not
be a good State’s juror in this case.
We struck juror number 49, Dorothy Johnson.
Information from investigation was that she had been a
defendant in small claims court and been served with
numerous civil suits. She was not particularly well
thought of and recommended to us as a juror to strike.
In voir dire, she seemed to be extremely responsive to
the Defendant’s questions. I noticed that she was
(R-390) chewing gum and not particularly concerned
about this and felt like she would not be a proper juror
to serve on this jury.
Number 18 was our 10th strike, Betty Cottrell. She
asked off this jury. She did not want to serve and she
answered our questions with reference to involvement
and knowledge of criminal activity in the affirmative.
D-77
She indicated that she or someone very close to her had
been charged with some criminal! offense.
Our next strike was number 80, Willie Pratcher. This is
the juror who indicated that he lived in Atlanta and
seemed to be interested in not serving. He was wearing
sunglasses and that to me has always been a point.
When I find jurors doing that, unless there’s a real good
reason for it, generally, they do not tend to make very
good State jurors. He’s the only one in that position. He
also was sitting next to a Mr. Gray. Defense counsel
brought to the Court’s attention, of course, our attention
at the same time, that Mr. Gray, a juror struck for his
feelings on capital punishment, had approached defense
counsei discussing or talking or making some comments
about burning the guy or something of that nature and
Mr. Pratcher seemed to have (R-391) some type of
relationship with him. I felt uncomfortable leaving him
on the jury knowing the propensity of the Juror Gray to
verbalize his position.
Number 59 was struck as our 12th strike. That’s Miss
Gracie M. Lewis. Our information is that she was
single and unemployed. Also, our investigative informa-
tion indicated that her son had been involved in a death
or a killing. Information was not clear as to whether it
was some type of automobile accident or whether it was
some criminal charge, but in any event, her son was
involved in it in some manner and we felt like she could
not stay on as a juror.
Our 13th strike was number 85, Willie Shelton. I think
it’s Shelton. This juror, in the course of individual voir
dire, is from community and, of course, was listed here,
her marital status here, as separated. She was very
insistert on that. She reported that she lives in this
particular community and never heard anything about
D-78
this case whatsoever. We find that extremely strange
and based on that, felt like she should not remain as a
juror in this case.
Number 97, Essie Lee Williams, on individual (R-392)
voir dire, she seemed to be familiar with the case which,
being from the general area of this offense, that would
seem to be a plus, but her individual voir dire, she
seemed to be very concernsd and communicated to us
that she was well aware of the fact that one of the men
had lived to tell all about it and she was waiting very
much to hear that. Seemed to be very concerned about
that. Of course, we’re very familiar with the evidence in
this case where there is a proposed dying declaration
from the deceased, “Pop”, indicating some words to the
effect that some two white men did it. We felt that leav-
ing her on the jury with anticipation of testimony would
certainly be detrimental to us.
Our 15th strike was 102, Bertha L. Wilson. Sheriff's
Office recommended this juror be struck. The Sheriff
himself indicated he had known her for quite a long time
and felt that she was extremely anti—establishment.
That her mother was considered by him to be a person
he thought well of, but he was concerned with
Mrs. Wilson. He believed that her husband had been
previously in some type criminal trouble. We felt that
during the voir dire, she seemed to (R-393) be very
unconcerned about this very serious matter that she was
about. We struck her on that basis.
Our 16th strike was number 35, Annie Harris. She had
reported from her information as being single, unem-
ployed and relatively young. The note I made was that
she knew nothing about the case.
D-79
Our 17th strike was number 98, and that was Kenneth
L. Williams. Observations by our group in observing
the jurors was that this man was once again, seemed to
be involved with the juror, Mr. Gray. He seemed to be
associating with him. His general appearance was very
rough and simply felt like the combination of the two
justified and required us to remove him from the jury
panel.
Our 18th strike was number 9, Ruby Lee Brown. Now
she, according to our information, had had a husband
who had been killed in a homicide. That seemed to be a
plus. Sheriff's Office was very concerned that she was
extremely negative about that particular case and we felt
that leaving her as a juror would not be wise under these
circumstances. She was not happy or pleased with the
situation, that we should remove (R-394) her, so we
did.
Juror number 40, Mrs. Hayes, Lelia Hayes, getting to
the point where some of these jurors had some pluses.
We were concerned about keeping her. Mrs. Hayes
worked with Mrs. Bailey at the nursing home.
However, the reaction during individual voir dire con-
cerning that, she seemed to be totally removed from that
situation and totally unconcerned about it and based on
that, we felt there might be some animosity or something
we didn’t realize with Mrs. Hayes. We struck her on
that basis.
Number 43, Mrs. Hobson, was our next strike and this
was a juror we had decided that we would leave on the
jury or keep on the jury, but we felt that she was all
right, from our “andpoint. However, our information
was that she was requesting to get off the jury and had
requested to get off the jury. She had had an invalid
husband and the storm last night essentially damaged
D-80
their house. So we went ahead and removed her for
those reasons. Otherwise, we would have kept her.
Our 21st strike was number 59 — 39, Sarah Harris.
The information reported was that she had kinspeople
who had been in criminal trouble and though (R-395)we
had otherwise felt that she was all right, that informa-
tion caused us to remove her.
Juror number 106 was Mr. Wyatt, who had indicated
he had been in criminal trouble and had been prosecuted
at some point in time, though he was extremely positive
in his individual voir dire, that information, we felt,
required that he be removed.
MR. JOHNSON: He was a white male.
MR. GREENE: And juror number 38, was
Mr. Michael Harris, who indicated that he had a cousin
at some point in time, 15 years ago, that had been
involved in some type of criminal activity and we struck
him on that basis.
THE COURT: |. that all?
MR. GREENE: That concludes all our strikes. We
would like to mention for the record that the defense
strikes were of all white males or females, for whatever
benefit that is.
THE COURT: Cross examination.
MR. MORRIS: Judge, I’m not sure that I have any
cross. I would make it known for the record on I think
there were three people that they mentioned and that
was Mr. Williams, Mr. Pratcher and a Mr. Pratcher.
Mr. Kenneth Williams and Mr. Willie Pratcher and
one other individual (R—396) that I believe the District
D-$1
Attorney eluded to as sitting near or being around
Mr. Gray. I would make it known to the Court, I
believe the Court would recall that during yesterday’s
continuous voir dire that lasted into the night, Mr. Gray
was an occupant on the front row with a Mr. Corley sit-
ting on one side and a Mr. Collins sitting on the other.
Both of whom were white. To my knowledge, there was
not another black individual on the front row yesterday.
So I would differ with the information of the State in
that regard.
Now the information that the District Attorney has con-
cerning things like they had some relatives involved in
some crimes, being in small claims court where they’ve
bredidn’t seem to know anything about it, we contend
that the jurors by comparison that were left on this case
knew nothing about it. Starting with Mr. Grinstead,
Mrs. Fondren, Mr. Corey, also responded that they
knew nothing about it. A Mrs. Lyles.responded that she
knew something about it. She was left. A black female.
Now Mrs. Marks responded that she knew (R-397)
something about it, a black female. A Mr. Ryans
responded that he knew something about it, a black
male. A Mrs. Travis responded that she knew some-
thing about it, a black female. Mrs. Williams
responded that she knew something about it, a black
female, and our contention is that it’s clear that the fact
that someone knows nothing about it played no part and
we contend that it was strictly on the basis of race in this
matter.
As to Mrs. Ruby Lee Brown, she stated in voir dire that
her husband was a victim of a homicide and that the
victim was prosecuted and there would be no other — I
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believe she also responded — I believe she had a bumper
sticker — I take that back, Your Honor. That’s not
true. I’m saying that there would be no reason in the
world that I can think of why she would not be an excel-
lent juror other than race. She was struck.
Further, we contend that the last four strikes that they
enumerated, starting with Mrs. Brown, are very vague
and very indecisive answers. For instance, Mrs. Hayes,
number 19 strike, number 40 on the venire list, stated
that she knew Mrs. Bailey and that she knew her and
knew her (R-398) daughter and had an association with
Mrs. Bailey who’s in the nursing home where she’s
employed as well as knew her daughter well. No con-
ceivable reason that the defense can find, no conceivable
reason that she would not make an excellent juror for
the State, other than the fact that she’s black.
Now there’s vague allegations on number 43, they say
that her husband had been in some sort of problem.
Mrs. Hobson, we contend that’s just a smoke screen
there. And then one of the persons up here, he had some
sunglass2s on. The defense contends certainly that is no
justifiable reason. Now that’s all I have.
MR. GREENE: Our only response is that one of the
first things as to Mr. Gray, it was reported to us and
made quite some concern as to Mr. Gray this morning
concerning who he might talk to. Now this is the infor-
mation we got from the people we asked to try to pay
attention. Now Mr. Williams, Gray, Patton and
Pratcher, were sitting together this morning in the back
of the courtroom. We felt that that might be a matter of
concern. We point out for the record that the last, I
think, five strikes, for the State involved two white males
we thought we (R-399) had some problems with and
three black females that we were concerned about. We
D-83
also thought these three black females might make us
good jurors, but we had reason, we felt, overrode our
desires to retain them.
I think that’s all.
THE COURT: Is it your testimony as an officer of this
Court that the reasons for striking were nonracial and
not based upon the race of any particular juror?
MR. GREENE: It is, Your Honor. I think the jurors
we have before us bears that out. There’s black males
serving, some five blacks in total. We have an abun-
dance of females on this jury in a capital murder case. I
think we’ve got a jury that well reflects, based upon peo-
ples backgrounds, Your Honor, and on that basis, a fair
racial mixture of males and females, black and white, in
this community. We arrived at this through exhaustive
and argumentative process.
At Mr. Stephens trial which began December 14, 1987,
the Hon. Larry W. Morris, trial counsel for Mr. Stephens,
raised an objection to the fact that of the 22 jurors struck by the
State, the first 21 were black, (R-386).
During the closing arguments of the State, Mr. Ed
Greene, Chief Deputy District Attorney, made an allegation to
the jury that Mr. Morris was attempting to cover up all the evi-
dence, a direct and personal attack on the character of a fellow—
attorney, Mr. Morris, (R-814). Although Mr. Morris objected
to this comment, the Court overruled his objection and allowed
Mr. Greene to continue with his attack, (ibid).
During the penalty phase of Mr. Stephens’ trial
the court allowed the State of Alabama in the person of
D-84
Mr. Greene, to elicit testimony concerning a crime alleged to
have been committed by Mr. Stephens in Carrollton, Georgia,
although Mr. Stephens had never been convicted of the offense,
(R-870, 871).
At the appellant’s sentencing trial, the State’s
prosecutor specifically stated that there were only two aggravat-
ing circumstances that they intended for the jury to consider,
(R-858). The first aggravating circumstance was the alleged
event that was the basis of the trial. The second alleged aggra-
vating circumstance had occurred 11 days before this alleged
event, (R-865). The trial court specifically charged the jury
that there were only two aggravating circumstances for them to
consider, (R-883).
The trial jury deliberated the issue of whether life
without parole or the death penalty was the appropriate penalty
to impose in this case. After deliberation, the trial jury, by a
seven (58%) to five (42%) vote, determimed that life without
parole was the appropriate sentence to be imposed in this case,
(R-906). Yet, the trial court, without justifiable causes stated,
refused to give any credence to any of the mitigating issues
presented by the Defense counsel before the advisory jury and
sentenced the appellant to death.
The appellant was convicted of capital murder on
December 17, 1987, (R-183), and sentenced to death on
July 24, 1989, (R-908, et seq.}.
D--85
Supreme Court of Alabama
Application for Rehearing
Stephens Appeal
D-86
NE Sa ee
Tee ee ee ae a ee ee eee eee ee ee
IN THE SUPREME COURT OF ALABAMA
’ No. 1900032
Ex parte Victor Stephens
In re:
VICTOR STEPHENS, * 2 Div. 738
*
Appellant, * On Appeal from
vs. * Hale County Circuit
Court
* CC-89-34
STATE OF ALABAMA °
ae
*
Appellee,
ON PETITION FOR WRIT OF CERTIORARI
TO THE ALABAMA COURT OF CRIMINAL APPEALS
APPLICATION FOR REHEARING AND
BRIEF IN SUPPORT OF APPLICATION FOR REHEARING
Blanchard L. McLeod, Jr.
622 Alabama Avenue
Selma, Alabama 36702
Counsel for Victor Stephens
D-87
IN THE SUPREME COURT OF ALABAMA
No. 1900032
Ex parte Victor Stephens
In re:
VICTOR STEPHENS, * 2 Div. 738
*
Appellant, * On Appeal from
vs. * Hale County Circuit
Court
CC-89-34
STATE OF ALABAMA
Appellee,
APPLICATION FOR REHEARING AND
BRIEF IN SUPPORT OF APPLICATION FOR REHEARING
On March 15, 1991, this Court affirmed the conviction
and death sentence of Victor Stephens. Mr. Stephens comes
before this court pursuant to Rule 40 of the Alabama Rules of
Appellate Procedure and seeks reconsideration of this Court’s
judgment denying relief from an unconstitutionally obtained
conviction and death sentence in Ex parte Stephens,
So.2d _____, No. 1900032 (Ala. 1991).
D-88
Mr. Stephens contends that this Court has failed to
properly recognize violations of his rights under state and fed-
eral law and incorrectly concluded that his conviction and death
sentence are due to be affirmed. In support of his application
for rehearing Mr. Stephens incorporates by reference his briefs
filed on appeal to this Court and further submits the following.
ARGUMENT
L THIS COURT ERRED IN
CONCLUDING THAT THE
PROSECUTOR’S USE OF 21 OUT OF
23 PEREMPTORY CHALLENGES
AGAINST BLACK JURORS DID NOT
VIOLATE BATSON AND ALABAMA
LAW.
The prosecutor in this case used ninety—one percent (91%)
of its available peremptory challenges to exclude black potential
jurors from jury service at Mr. Stephens’ capital trial. The
exclusion of 21 black potential jurors out of 23 peremptory
strikes establishes an extraordinary prima facie case of racially
biased jury selection that could not be rebutted by the
prosecutor’s professed reasons. The prima facie evidence of
racially discriminatory use of peremptory challenges was so
great in this case that a prosecutor cannot simply state what
would otherwise constitute racially neutral reasons and ade-
quately rebut the showing of a constitutional violation.
This Court’s deference to the reasons proffered by the
prosecutor for exercising 91% of the State’s peremptory chal-
lenges against black jurors violates Batson v. Kentucky, 476
U.S, 79 (Ala. 1987); Ex parte Branch, 526 So.2d 609 (Ala.
D-89
1987), and is wholly inadequate to combat invidious racial
discrimination in the imposition of criminal justice.
1 THE TRIAL COURT’S
STANDARDLESS AND IMPROPER
OVERRIDE OF THE JURY’S
VERDICT OF LIFE IMPRISONMENT
WITHOUT PAROLE VIOLATES
MR. STEPHENS’ RIGHTS UNDER
THE SIXTH, EIGHTH AND
FOURTEENTH AMENDMENTS AND
ALABAMA LAW.
The standardless and arbitrary override of jury verdicts
for life imprisonment without parole in Alabama violates state
and federal constitutional protections rooted in the Sixth, Eighth
and Fourteenth Amendments. The trial court’s override of the
jury’s verdict for life imprisonment without parole in this case
was particularly unconstitutional where the trial judge offered
no reason for rejecting the jury’s verdict for life imprisonment
without parole; the facts of this case did not dictate that a judg-
ment of death was so clear and convincing that no reasonable
person could differ, and neither the Court of Criminal Appeals
nor this Court made any specific review of the propriety of the
trial court’s override in this case or otherwise sought to limit and
regulate the use of override in Alabama capital proceedings.
Of the three states which permit judge override of a jury
recommendation of life, only Alabama has articulated no precise
standard to guide a trial judge’s consideration and override of a
jury verdict of life imprisonment without parole.' In rejecting
1. See Chavez v. Indiana, 539 N.E.2d 4 (Inc. 1989) (Expressly noting that
Alabama has not yet adopted a precise standard to regulate judge overrides of
D-90
the Tedder standard as an “extra protection” afforded capital
defendants, Murry v. State, 455 So.2d 53, 65
(Ala.Crim.App. 1983), appellate courts in this state have failed
to recognize that a mechanism limiting discretion is integral to
the constitutionality of the override.? See Dobbert v. Florida,
432 U.S. 282, 285 (1977) (terming Tedder standard a “crucial
protection” in the Florida scheme).
Under Alabama law, before a sentence of death can be
imposed on a person convicted of a capital offense, the
defendant has a right to a sentencing hearing before a jury that
must carefully weigh aggravating and mitigating circumstances
and render a sentencing verdict which is advisory. §13A—5—46,
Code of Alabama, 1975. The jury plays a critical role in impo-
sition of the death penalty in Alabama. Alabama law has
required that any error undermining the reliability of the jury’s
critical sentencing determination must result in a new sentenc-
ing proceeding.
In upholding Florida’s override provision in Spaziano, the
United States Supreme Court expressly relied on Florida’s stan-
dards which guide a trial court’s decision to override a jury rec-
ommendation of life.’ See Tedder v. State, 322 So.2d 908
(Fla. 1975). This Court has adopted no guidelines and as a
jury sentencing verdicts in capital cases). See infra.
2. Some Alabama judges and commentators have expressed a desire for
Alabama to adopt a Tedder standard and provide guidance to judge override.
See ¢.g., Ex parte: Arthur Jones, 456 So.2d 380, 382 (1984) (J. Jones
concurring); Colquitt, “The Death Penalty Laws of Alabama” 33
Ala.L.Rev. 213, 326-328 (1982).
3. In Florida a trial court may override a jury recommendation of life only if
“the facts suggesting a sentence of death are so clear and convincing that vir-
tually no reasonable person could differ.” Proffitt, 428 U.S. 242, 249, quoting
Tedder v. State, 322 So.2d 908 (Fla. 1975).
D-91
result jury verdicts for life are rejected arbitrarily and without
adequate constraints. Some trial judges consider jury verdicts
for life to be mitigating circumstances, some like Mr. Stephens’
judge do not. This court has previously stated that additional
appellate review takes place in override cases, Ex parte Tarver,
So.2d (Ala. 1989), yet neither this Court nor
the Court of Criminal Appeals specifically reviewed whether the
judge’s override was justified.
The arbitrary and standardless application of the death
penalty after sentencing juries have carefully concluded that
death is not the appropriate punishment should be reconsidered
by this Court.
Il. THE TRIAL COURT FAILED TO
INSTRUCT THE JURY ON THE
LESSER INCLUDED OFFENSE OF
FELONY-MURDER IN VIOLATION
OF STATE AND FEDERAL LAW.
At Victor Stephens’ trial, the court only instructed the
jury on intentional murder during the course of a robbery and
on intentional murder. The trial court should also have
instructed the jury on the lesser included offense of felony—
murder. The State introduced overwhelming evidence of a rob-
bery and substantial evidence that the killings were the unin-
tended consequence of one of the victims drawing and firing a
shotgun. In fact, the evidence of an unintentional killing was so
strong that the court actually instructed the jury on the affirma-
tive defense of self-defense. Given the evidence of robbery, the
court’s failure to instruct on felony—murder left the jury with
only two options: either to convict the defendant of capital
murder or to acquit the defendant. This deprived Mr. Stephens
of his due process rights guaranteed under Beck v. Alabama,
447 U.S. 625 (1980), and applicable state law.
D-92
The law in Alabama is well settled that “the jury must be
permitted to consider a verdict of guilt of a noncapital offense
‘in every case’ in which ‘the evidence would have supported such
a verdict.” Hopper v. Evans, 456 U.S. 605, 610 (1982).
The cases following Beck v. Alabama, 447 U.S. 625
(1980), have made it clear that the standard to determine when
a lesser included instruction should be given is whether “there is
any reasonable theory from the evidence which would support
the [lesser offense] position.” Fulghum v. State, 277 So.2d 886,
890 (1973); Cook v. State, 431 So.2d 1322, 1324 (Ala. 1983)
(quoting Hopper v. Evans, 456 U.S. at 611-612); Richardson v.
Johnson, 864 F.2d 1536, 1538 n.3 (11th Cir. 1989).
Under the Fulghum standard, an accused is entitled to a
lesser included instruction regardless of whether the State or the
defendant offers the evidence supporting the lesser included
offense. Ex Parte Pruitt, 457 So.2d 456, 457 (Ala. 1984). In
addition, if “the defendant denies the charge but the evidence
presented by the State suggests a reasonable theory supporting a
charge on a lesser offense, the trial court is obliged to give a
charge on the lesser offense when requested.” Jd.
In the case at bar, the State presented to the jury three
statements of the defendant. In the first statement, given on
January 23, 1986, Mr. Stephens stated that it was the co—
defendant's idea to rob the store, that he did not know who had
shot first, his co-defendant or the store—owner, but that when he
entered the store “he was shot by one of the men in the store
with a shotgun.” R-619. He also related that he was high on
cocaine and LSD prior to the robbery and therefore could not
remember all of the details. R-619. In the second statement,
which was given on January 25, 1986, and read to the jury,
Mr. Stephens stated:
D-93
I just walked into the store after Peabody [the co-
defendant] went in. He had been in a while so I went in
to see what was happening. When I walked in, the white
man started shooting with a shotgun. I just pulled out
my pistol and started shooting. We left and came back
to Georgia.
R-626—27. And in the third statement, given on January 28,
1986, and also read to the jury, Mr. Stephens explained:
After we came across a long bridge in Alabama,
Peabody kept saying, ‘he needed some money.’ After we
crossed the bridge, we pulled over to this store to get
gas. Peabody said ‘he needed some money.’ I told him I
had enough money to get us home.
When we pulled up to the gas pump a white man came
out and pumped us $10 worth of gas. I asked the man if
he had a bathroom and he said ‘no.’ I got back in the
truck and smoked a cigarette. Peabody went into the
store. He stayed [in] the store a long time and I walked
up to the store and opened the door, then this white man
shot me in the hand. I fell to my knees and pulled my
gun (.25 cal. automatic) out of my right rear pocket and
started shoting. I don’t even know if I shot anybody or
not. The white man was standing to my left when he
shot me with the shotgun. Peabody came running by me
yelling ‘let’s go, let’s go.” We ran out and jumped in the
truck. I didn’t make it in time.
R-669-670.
Clearly, this evidence supported a theory of felony—
murder and the trial court recognized as much. The court noti-
fied the parties that it would instruct the jury on capital murder
and on the lesser included offense of felony-murder. R-776—77;
R-781. However, the court ultimately decided not to instruct on
D-94
felony—murder because the State convinced the court that there
is no difference between intentional murder during a robbery
and felony-murder. R-782 (“[t]hey don’t have to come in with
intent to kill them and rob them”).‘ The court’s failure to
charge on felony—murder denied Mr. Stephens his right to due
process and to be free from cruel and unusual punishment in
violation of state and federal law.
[V. THE TRIAL COURT IMPROPERLY
INSTRUCTED THE JURY ON
REASONABLE DOUBT IN
VIOLATION OF VICTOR STEPHENS’
RIGHT TO DUE PROCESS.
At Victor Stephens’ trial, the court’s instruction on rea-
sonable doubt would have allowed the jury to find the defendant
guilty on a degree of proof below that required by the Due
Process Clause of the Alabama and United States
Constitutions.
Most recently, the United States Supreme Court summar-
ily reversed a conviction where the trial court had improperly
instructed the jury on the element of reasonable doubt. Cage v.
Louisiana, U.S. , 59 U.S.L.W. 3361
(November 13, 1990). The instruction under review in Cage
provided:
If you entertain a reasonable doubt as to any fact
or element necessary to constitute the defendant’s guilt,
it is your duty to give him the benefit of that doubt and
return a verdict of not guilty. Even where the evidence
4. The State’s position, of course, is clearly erroneous. See Russaw v. State,
572 So.2d 1288 (Ala.Crim.App. 1990).
D-95
demonstrated a probability of guilt, if it does not
establish such guilt beyond a reasonable doubt, you must
acquit the accused. This doubt, however, must be a rea-
sonable one; that is one that is founded upon a real tan-
gible substantial basis and not upon mere caprice and
conjecture. It must be such doubt as would give rise to a
grave uncertainty, raised in your mind by reasons of the
unsatisfactory character of the evidence or lack thereof.
A reasonable doubt is not mere possible doubt. It is an
actual substantial doubt. It is a doubt that a reasonable
man can seriously entertain. What is required is not an
absolute or mathematical certainty, but a moral
certainty.
Id. The Supreme Court concluded that a reasonable juror could
have interpreted the instruction to allow a finding of guilt based
on a degree of proof below that required by due process. The
Court wrote:
It is plain to us that the word “substantial” and “grave,”
as they are commonly understood, suggest a higher
degree of doubt than is required for acquittal under the
reasonable doubt standard. When those statements are
then considered with the reference to “moral certainty,”
rather than evidentiary certainty, it become clear that a
reasonable juror could have interpreted the instruction to
allow a finding of guilt based on a degree of proof below
that required by the Due Process Clause.
Id.
At Victor Stephens’ trial, the court used the words that
the Supreme Court held are commonly understood to denote a
higher degree of doubt. The court stated that “the doubt which
would justify an acquittal must be an actual and substantial
doubt. . .” R-832 (emphasis added). The court told the jury
that it need only have “an abiding conviction of the truth of the
D-96
charge.” R-832. In addition, the court, at several points,
equated beyond a reasonable doubt with “to a moral certainty.”
R-833. The result was that the jury should have found
defendant guilty on a degree of proof below that required by due
process.
Vv. THE STATE PROSECUTOR
ENGAGED IN IMPROPER
ARGUMENT IN VIOLATION OF
MR. STEPHENS’ STATE AND
FEDERAL CONSTITUTIONAL
RIGHTS.
The prosecutor at Victor Stephens’ trial made an
improper reference to the substance of the co—defendant’s state-
ment, in direct violation Bruton v. United States, 391 U.S. 123
(1968), and also improperly shifted the burden of proof, in viola-
tion of Sandstrom v. Montana, 442 U.S. 510 (1979). In addi-
tion, the prosecutor repeatedly made impermissible references to
the victim and the victim’s family, in violation of Booth vy.
Maryland, 482 U.S. 496 (1987).
A. The Bruton Violation.
During closing argument, the state prosecutor
remarked:
5. See, e.g., R-788 (“on bebalf of the State of Alabama and Mr. Pickens and
Mr. Bailey and the relatives, we appreciate [your attention] very much”); R-
819. The state also engaged in the impermissible practice of sitting the
victim’s family at the prosecutor’s table. See R-417.
D-97
Now in the course of this trial, there was some evidence
about an eyewitness and there was a comment from the
witness stand concerning the fact, that wait a minute,
there’s another eyewitness. You can only speculate as to
what he had to say. You’re not going to know anything
about what he said or didn’t say. Now this man’s co-
defendant is not saying, “Oh, yeah, it was mu idea, I’m
the guilty one.” You can bet your bottom dollar he’s
pointing the finger at him saying, “no, he lead us into
it.” So what is this statement? It is that, “I was there, I
was involved with it,” and he’s covering up what he
really did and that is that both of those men went in
there to rob and do whatever was needed to get money
from those two old men. .
R-818-819.
The State’s use of the co-defendant’s statement denied
Mr. Stephens the right of cross—-examination secured by the
Confrontation Clause of the Sixth Amendment. Bruton v.
United States, 391 U.S. 123 (1968); Douglas v. Alabama, 380
U.S. 415 (1965); Gladden v. State, 551 So.2d 1141
(Ala.Crim.App.), cert. denied (1989) (reversing on the basis of
Bruton). The highly prejudicial nature of the prosecutor’s
statement, namely that the co-defendant pointed the finger at
Mr. Stephens, requires reversal in this case.’
6. The interlocking confession exception carved out in Parker v. Randloph,
442 U.S. 62 (1979) does not apply here since the trial court gave no limiting
, ;
7. Earlier, the trial court specifically precluded the state prosecutor from
questioning an investigative officer on the co—defendant’s statement, exclaim-
ing “I can’t do that. I cannot do that. I can’t let Starks’ out-of-court state-
ment — I just can’t do that. I think that’s rank hearsay in one respect.”
R-651.
D-98
b. The Improper Burden Shifting
Remarks, Comment on Silence and
Penalization for Exercising the Right
to Counsel.
During closing argument, the prosecutor also remarked:
He got up in his closing argument, and keeps trying to
talk about holes somewhere. Yet he never proved 2
single piece of evidence about anything connecting with
that. He’s supposed to give you some idea, and you’re
supposed to believe that somewhere they had this man
down in a hole beating on him with sticks to make him
confess. That’s what you’re supposed to believe. But he
hasn’t proved anything like that. . . He hasn’t proved
anything like that because it doesn’t exist. . . He hasn’t
proved any of it. I get awfully tired of coming up here
listening to that kind of defense. Where is his defense in
this case? What is he defending this man on?
R-814-815.'
These remarks improperly shifted the burden of proof in
general, and, in particular, the burden of proving the involun-
tariness of a statement, in violation of Mr. Stephens right to due
process. Sandstrom v. Montana, 442 U.S. 510 (1979) (holding
that an instruction concerning a presumption of intent violates
due process); Lowery v. State, 108 So.2d 351 (Ala.Crim.App.
1926) (remark that “[hJe had his friends here, but he did not
8. Counsel objected to this line of argument, claiming that it improperly
shifted the burden of proof and penalized the defendant for asserting his right
to counsel. R-815.
D-99
put them on the stand” held to be reversible error). The remark
also amounted to an indirect comment on the defendant’s failure
to take the stand and testify, in violation of his Fifth
Amendment privilege against self-incrimination. Ex parte
Williams, 461 So.2d 852 (Ala. 1984); Ex parte Brooks, 562
So.2d 604 (Ala. 1990); Arthur v. State, Slip Op. at 44
(Ala.Crim.App. 1990). Finally, the state prosecutor penalized
the defendant for exercising his right to counsel, in violation of
Mr. Stephens’ right to a fair trial.’ Cunningham v. Zant, No.
90-8165 (11th Cir. 1991) (improper appeal to the passions and
prejudice of the jury and derogation of defendant’s right to fair
trial highly improper); United States v. McDonald 626 F.2d 559
(Sth Cir. 1980).
VI. THE TRIAL COURT IMPROPERLY |
RELIED ON A SUBSEQUENT
CONVICTION TO OVERRIDE THE
JURY’S VERDICT OF LIFE IN
VIOLATION OF MR. STEPHEN’S
STATE AND FEDERAL DUE
PROCESS RIGHTS.
Mr. Stephens was convicted of first degree robbery and
attempted murder on October 20, 1987, in Randolph County,
Alabama, and sentenced to life without parole. This conviction
was obtained nine months after Mr. Stephens allegedly partici-
pated in the events leading to this case (January 20, 1986).
Nevertheless, the trial court used the Randolph County convic-
tion as an aggravating factor and held that “the Defendant was
previously convicted of a felony involving the use or threat of
9. See also R-824 (“He’s got not right to sit over there and claim there's
something wrong witb this case.”)
D—-100
violence to the person.” Sentencing Order, July 24, 1989, p. 7
(Volume I, p. 171).
Under the Alabama capital sentencing statute, it is an
aggravating circumstance that “(t]he defendant was previously ©
convicted of another capital offense or a felony involving the use
or threat of violence to the person.” Ala. Code § 13a—5-49. The
plain meaning of this provision is clear from the language
employed: the defendant must have been convicted of another
violent crime prior to committing the capital offense charged.
In the context of the seven other aggravating circumstances, it is
also clear that the defendant must have been convicted of a vio-
lent crime at the time he commits the capital offense charged.
Finally, the purpose of the aggravating circumstance — namely,
to deter repeat violent offenders — is only served if the
defendant was previously convicted and punished for the previ-
ous violent crime.
Accordingly, the trial court’s reliance on a subsequent
conviction to override the jury’s verdict of life deprived Mr.
Stephens of his rights to due process and to be free from cruel
and unusual punishment, in violation of the Fifth, Sixth, Eighth
and Fourteenth Amendments to the United States Constitution,
and of Article I of the Alabama Constitution.
Vil. THE TRIAL COURT COMMITTED
REVERSIBLE ERROR IN
ADMITTING INTO EVIDENCE
STATEMENTS OBTAINED IN
VIOLATION OF MR. STEPHENS’
FIFTH AMENDMENT RIGHT
AGAINST SELF-INCRIMINATION.
The trial court improperly admitted into evidence four
statements of the defendant in violation of the Fifth, Sixth,
D-101
Eighth and Fourteenth Amendments. In the first statement, the
defendant denied any participation in the crime and stated that
he had been shot by Dennis Jones in Carollton, Georgia.
R-636. The interview was given in a hospital in Carollton,
Georgia. The State, however, never established that
Mr. Stephens had knowingly and intelligently waived his
Miranda rights at that first interview."* R-39 (no evidence that
defendant waived his rights); R-28 (Miranda waiver only signed
at third interview of January 25, 1986); R-57 (no evidence that
defendant waived his rights); R-58 (same). As a result, the first
statement was inadmissible for lack of a valid waiver and the
three other statements were inadmissible as fruits of a poisonous
tree. Brewer v. Williams, 430 U.S. 387, 404 (1977) (State has
burden of establishing a valid waiver); Michigan v. Long, 475
U.S. 625, 633 (1986) (same).
In addition, Mr. Stephens asserted his Fifth amendment
rights on January 23, 1986, at the conclusion of his second
statement. R-40 (defendant said “I don’t want to talk about
killing them two men anymore”); R-620 (same). Nevertheless,
the State initiated two subsequent interviews. See R-46
(January 25, 1986) (“I believe I would think I called and asked
the defendant to be brought forward to be interviewed);
R-50-51 (January 28, 1986). The State filed to honor
Mr. Stephens’ assertion of his Fifth Amendment rights by initi-
ating subsequent interviews, in violation of Edwards v. Arizona,
451 U.S. 477 (1981). See also Michigan v. Jackson, 475 U.S.
625 (1986) (Edwards established another prophylactic rule
designed to prevent police from badgering a defendant into
waiving his previously asserted Miranda rights); Minick v.
Mississippi, No. 89-6332, Slip Op. at 4 (December 3, 1990)
10. Mr. Stephens was additionally in no condition to intelligently waive his
right to counsel given his physical and mental condition at the hospital, his
drug addiction and limited intellectual functioning.
D—102
(same). As a result, any subsequent waiver of the defendant's
Fifth Amendment rights is invalid. See Arizona v. Roberson,
486 U.S. 675, 680-681(1988). The admission into evidence of
the third and fourth statements, see R-627 and R-670, there-
fore violated Mr. Stephens Fifth, Eighth and Fourteenth
Amendment rights.
CONCLUSION
Mr. Stephens’ application for rehearing should be
granted and his unconstitutionally obtain conviction and sen-
tence of death overturned.
Respectfully submitted,
Blanchard L. McLeod, Jr.
622 Alabama Avenue
Selma, Alabama 36702
Counsel for Victor Stephens
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CERTIFICATE OF SERVICE
I hereby certify that a copy of the attached document has
been served on counsel for the State of Alabama, Hon. Beth
Slate Poe, Office of the Attorney General, 11 South Union
Street, Montgomery, Alabama 36130, this 29th day of March,
1991.
Blanchard L. McLeod, Jr.
D-104
Circuit Court of Hale County, Alabama
Closing Arguiaent of Defense Counsel
Stephens Trial
Record 800-808
D-105
MR. MORRIS: _[If it please the Court, ladies and gen-
tlemen of the jury, this is the last time I'll have an opportunity
to speak to you and I’m quite confident that a lot of you are
about ready for me to be quiet. I understand that. I walked
into this courtroom for the first time in my life Monday. I saw a
group of jurors who are faced with a mighty touch task and I
know that. But a group of jurors who’s not shurking their task.
The State is going to talk to you about confessions and
I’m going to talk you about confessions. Now during the time
that I’m talking with you, I hope I’ve — I have a tendency, and
my wife says I have a tendency when I get excited, I get up a
little louder. Now let me hasten to say that during the course of
this trial if I’ve done something or not done something that you
didn’t approve of, I want you to tell me afterwards. Hold it
against me, don’t hold it against the individual that’s been
seated over there with me during this week. I want to talk to
you basically about some things that he talked to you about in
opening statements. Now ladies and gentlemen, one of the
things that I’ve found that is if you’ll be truthfui with the jury,
the jury will appreciate it. I told you that I didn’t know whether
or not Victor Stephens did these acts, and let me tell you again
that I don’t know. I believe you don’t know either. Let me tell
you about four things or the four reasons why I don’t know.
Let’s start off with something right here.
If you'll recall that they found a pair of gloves when they
searched the vehicle and if you will recall, the gloves, they didn’t
introduce them in evidence, but there was no shot mentioned of
any — wasn’t any shot in the gloves, either hand. So let’s
assume that that would lead you to believe that the reason,
because of this smooth surface here, there are no fingerprints,
that there are no Victor Stephens’ fingerprints is because he had
the gloves on, and that is not true. There wasn’t any shot in the
gloves. Of course, if he had the gloves on, he would have shot
holes in the gloves and that wasn’t true. Everybody agrees with
D-106
that. It’s inconceivable that within 30 minutes, when a man is
gripping, whoever it was, was gripping this weapon, if you
believe Mr. Lawden Yates, the toxicologiest was gripping it
here and here and here, that you wouldn’t have the man’s fin-
gerprints on there, well, you did have the man’s fingers on
there. Don’t be misled by that. The interesting thing is that
they didn’t have Victor Stephens’ fingerprints on there because,
as I said, did they compare the prints that they extracted from
the handle of this gun with Victor Stephens? Yes. Did it
match? No. That’s the evidence before you. That’s the State
of Alabama’s witness. How many people have got type B
blood? Mr. Serologist, Mr. Forensic Scientist with the State of
Alabama, with all its resources, 250,000 people, you can’t con-
vict on that. Tell me, Mr. Firearms Expert, and Mr. Ballistics
Expert, tell me did that shot in Victor Stephens’ hand come
from that shotgun? I don’t know. And they know, ladies and
gentlemen. These are experts, supposedly. They knew they
couldn’t take the hand — the shot in the hand and match it up
with this. They couldn’t match the fingerprints and there’s one
other thing that ain’t nobody mentioned and I want the man
who’s got the last shot to tell you about this too. If he can’t, he
can’t. Why, Mr. Forensic Scientist, didn’t you take that hat
that he said from this witness stand that had hair in it and why
didn’t you take that one thing, you hadn’t got the fingerprints?
We dusted the cash register and we dusted the door and we
dusted here and we dusted there and found the prints down here
on this gun, but we've got a hat. Now I’m nervous, I have never
done this before. I’ve never had a man’s life in may hands
before. I want them to tell you. Either that they took those —
they knew to do that. They had that hat, standing right by the
door, he said. Right next to the .25 caliber that had somebody
else’s fingerprints on it and then they took that hat in their
possession. I submit to you of those two things, I don’t know the
answer. Hair is the easiest to match up. It’s the easiest way to
convince you, to bring evidence to you, to convince you beyond a
reasonable doubt and to a moral certainty. Hair is unique. He
D-107
talked about the bore in this weapon. I submit to you that he
said there is some that he just can’t distinguish. Some he can’t
detect because it’s microscopically hard to determine. I submit
to you that your hair and my hair will match up if it’s in another
place every time and it’s the easiest to do. Now, Mr. State of
Alabama, if you want to make a case, and I say to you again, I
don’t know. But that’s the one means available to them to let
you know, and I don’t know why they didn’t match it, I'll never
know that. I will not have an opportunity to do all of this. The
State of Alabama has got all of those resources —
MR. GREENE: I object to that argument. This evi-
dence is equal to both sides.
MR. MORRIS: It is not. The first I heard about it
was on the witness stana.
THE COURT: Address your remarks to the Court.
MR. GREENE: Yes, sir; ’'ll address them to the
Court.
MR. MORRIS: The first time I ever heard about that
was right there on that witness stand. I filed the proper
motions.
THE COURT: It’s argument of counsel. Ladies and
gentlemen, this is argument of counsel. I’ve instructed you ear-
lier that this is not evidence and Ill instruct you further as to
this as we go further. Continue.
MR. MORRIS: So then what we’ve got here, ladies
and gentlemen, is the State is saying that you should invoke the
death penalty. That’s what they’re asking for. You can cut it
any way you want to, but that’s what is before you, and will be
before you. They’re asking you to do that. They’re asking you
D—108
to do that when they haven't got this fingerprint. When they
can’t identify by blood, when they can’t identify by the shot and
the one thing they they know that they can identify by is that
hat and they never mentioned that. They don’t bring that to
you, yet they say convict.
Well, why do you convict? Oh, because he gave a
statement. He gave a statement. I'll ask you to do this. I know
you all will do it. When you get back in the jury room, I’d ask
you to deliberate or think about two things. Think about the
evidence without the statement. Think about the witness that
says a man that robbed me, didn’t say one or two. Now I told
you in opening statements that he would say that there were two
men. That was incorrect. I was incorrect on that. I apologize.
But that’s the way I understood it. I hadn’t talked to Mr. Portis
then at that time. But, “the man or men that robbed me were
white. They were driving a red car.” Now I suppose they’re
going to say to you, oh, don’t beleive him, he was delirious.
What if he was right? What if he was right? What if the man
who saw it with his own eyes and then dismissed Mr. Portis and
even Mr. Jim over here with the District Attorney’s Office got
before you and said we know Mr. Portis, he was telling the
truth. Nobody doubts that Mr. Jessie Portis who came up here,
that that was old to him. Nobody is doubing that Mr. Jessie
Portis is telling the story. So if Mr. Jessie Portis isn’t telling a
story, I guess they’re saying Adam Pickens is telling a story. I
guess that’s what they’re saying. I don’t know. They’re going to
get the last shot at you. Then we go to what they call the
confessions. If I understood it correctly, it took four times to get
it the way they wanted it. They go to the hospital the first time
and I may be wrong about my dates, but I thought it was on the
2ist. They say it’s on the 20th. I thought Mr. Stone said he
went on the night of the 21st which would have been on
Tuesday. Y’all heard the evidence. He said he was shot in the
hand by his gir! friend’s dad and that’s what he said. That’s
what Mr. Stone said that he said. Then he placed him under
D—-109
arrest and then two days later when he’s in the jail, in the
“hole” down there, they bring him up and then he gives an oral
statement. It’s an oral statement, not signed by Victor
Stephens. He acknowledges it’s not signed. I think he said it
lasted two hours. Then he goes on. That’s on a Wednesday and
then on Saturday he goes back to the “hole”, he goes back to the
“hole” and for whatever reason on the following Saturday he
brings him back. I believe they said at that time there were five
officers present. Then he talks to them, as I understood it, for
three hours. That’s five hours longer than you have been here
today. And then on the 28th which would have been on a
Tuesday, he talked to the officers for four and a half hours, and
that totals up to nine and a half hours.
I submit to you, ladies and gentlemen, and I’m going to sit
down shortly, I submit to you the reason why they brought this
person up there and ever what means were made to illicit a
statement was that they knew they had no case without it. I fur-
ther submit to you that many a person is in the penal system of
the State of Alabama where a statement had been forced and
forced and forced out of them with no validity or truthfulness. I
have a heavy duty. I understand that duty. The burden has
been on my shoulders. I’m passing it now to you. The judge is
about to charge you that unless you’re convinced beyond a rea-
sonable doubt, you can’t convict. It’s not on the defendant to
prove to you his innocence it’s on the State of Alabama and I
have never seen as many law enforcement officers out there or
experts or forensic science people in my life sitting out there at
one time. Why they did not tell you and match for you what
was readily available at their disposal, only you can answer
because you've got to guess. You've got to surmise and you’ve
got to speculate. Under the law, you can’t base a verdict on
that. I’m confident when the State of Alabama proves their
case to you beyond a reasonable doubt that you will convict.
You should. But when the State of Alabama comes up here to
D-110
you and is looking for some scapegoat without sufficient
evidence, you have just an equal obligation under the law and
under our system that has worked for 200 years, to do the tough,
to do the difficult, and when they fail to prove it to you, as they
have failed in this case, you have just a greater duty to the
defendant. Thank you.
D-111
Circuit Court of Hale County, Alabama
Judge’s Instructions to Jury
Stephens Trial
Record 825-849
D-112
THE COURT: Ladies and gentlemen, at this point in the
trial, it’s my duty to instruct you as to the law
applicable to this particular case. The Defendant
in this case is charged, first in Count I of the
indictment, with the offense of murder during rob-
bery in violation of Section 13A—5—40(a)(2) of the
Alabama Criminal Code. This offense is classified
under the corte as a capital offense. I'll read to
you that portion of the indictment that relates to
Count I. It states,
“State of Alabama,
Hale County,
March 24, Session, 1986
The Grand Jury of said County charge that before
the finding of this indictment Victor R. Stephens,
whose name is otherwise unknown to the Grand
Jury other than as stated, did intentionally cause
the death of Adam Pickens by shooting him with a
pistol and Victor R. Stephens caused said death
during the time that Victor R. Stephens was in
the course of committing a theft of lawful money
of the United States, a description of same being
otherwise unknown to the Grand Jury, the prop-
erty of James R. Bailey, doing business as
J.R. Bailey Grocery Store, by the use of force
against the person of Adam Pickens, or against the
person of another present, to-wit: James
R. Bailey, with intent to overcome his physical
resistance or physical power of resistance, while
the said Victor R. Stephens was armed with a
deadly weapon, to—wit: a pistol, in violation of the
Code of Alabama, 1975, Title 13A—5—40(a)(2),
D-113
against the peace and dignity of the State of
Alabama.”
The Defendant in this case is charged in Count IT
of the indictment with the offense of murder
during robbery in violation of Section
13A-—5—40(a)(2) of the criminal code and this
offense also is classified as a capital offense. This
count of the indictment reads as follows:
“State of Alabama,
Hale County,
March 24, Session, 1986
The Grand Jury of said County charge that before
the finding of this indictment Victor R. Stephens,
whose name is otherwise unknown to the Grand
Jury other than as stated, did intentionally cause
the death of James R. Bailey, by shooting him
with a pistol and Victor R. Stephens caused said
death during the time that Victor R. Stephens
was in the course of committing a theft of lawful
money of the United States, a description of same
being otherwise unknown to the Grand Jury, the
property of James R. Bailey, doing business as
J.R. Bailey Grocery Store, by the use of force
against the person of James R. Bailey, or against
the person of another present, to-wit: Adam
Pickens, with intent to overcome his physical resis-
tance or physical power of resistance, while the
said Victor R. Stephens was armed with a deadly
weapon, to—wit: a pistol, in “violation of the Code
of Alabama, 1975, Title 13A—S—40(a)(2), against
the peace and dignity of the State of Alabama.”
D-114
Signed, “Roy L. Johnson, District Attorney of 4th
Circuit.”
Now embraced within the offense of capital
murder, as charged in both counts of this indict-
ment, that is, Count I, as it relates to Mr. Pickens
and Count II, as it relates to Mr. Bailey, is the
lesser included offense of murder in violation of
Section 13A-—6—2 of the Alabama Criminal Code
which is a class A felony. Now the Defendant in
this case is charged in each count of the indict-
ment with having committed a capital offense. A
capital offense is an offense for which the punish-
ment is either life imprisonment without parole or
death. The law provides that if a defendant is
convicted of a capital offense, additional proceed-
ings will be held to determine whether his punish-
ment is to be life imprisonment without parole or
death. But you are not to concern yourselves at
this time with any issue of punishment. Instead,
the only determination you are to make at this
time is whether the State has proven beyond a rea-
sonable doubt that the Defendant is guilty of a
capital offense as to Counts I and II or as to either
count or of some lesser offense which I’ll instruct
you about later.
Now as to each charge against him of capital
offense of murder during robbery as charged in
Count I of the indictment and the capital offense
of murder during robbery of Mr. Bailey as
charged in Count II of the indictment and to the
lesser included offenses of murder which are
embraced within each count of the indictment, this
Defendant has entered a plea of not guilty and not
guilty by reason of self-defense. Now under the
D-115
doctrine of self-defense, a person may use deadly
physical force in defending himself or a third
person under these circumstances if he reasonably
believes that such a person is using or about to use
unlawful deadly physical force or committing or
about to commit an assault in the first or second
degree. As person is not, however, justified in
using deadly physical force upon another person if
it reasonably appears or if he knows that he can
avoid the necessity of using such force with com-
plete safety by retreating.
Additionally, a person is not justified in using
physical force upon another person even under the
circumstances if, one, he provokes such other
person to the use of unlawful physical force with
intent thereby to cause physical injury or death to
another person, or, two, he was the initial aggres-
sor except that his use of force upon another
person under the circumstances is justifiable and if
he withdraws from the encounter and effectively
communicates to the other person his intent to do
so, but the other person, nevertheless, continues or
threatens the use of unlawful physical force. Now
my duty in this charge is to try to define for you
and direct your attention to the legal principals
which govern this case. I must try to state the law
to you plainly and accurately so you will compre-
hend the principals involved. The judge’s duty in
this case is to decide the law and it’s your duty to
determine the facts. I want you to understand
that I have no opinion of the facts of this case. It’s
not my business to have an opinion. If I did have
an opinion as to this case, it would be highly
improper for me to intimate or suggest it to you.
So I have no opinion of the facts of this case. I
D-116
don’t want you to think from anything I have said
or any ruling I have made in determining the law
that I think one way or the other about the facts
of this case. The determination of the facts does
not come within my province. That is your sole
and exclusive province, for you are the judges of
the evidence in this case. It is of the highest
importance in the administration of justice that we
keep our two provinces separate. So bear in mind,
ladies and gentlemen, that the weight and suffi-
ciency of the evidence in this case is for you and
not for the Court. When a defendant is placed on
trial charged with the commission of a public
offense, the law says that he’s presumed to be
innocent of the offense. This Defendant enters
this trial with the presumption of innocence in his
favor and it is a fact which is to be considered by
you as evidence and should not be disregarded.
This presumption of innocence remains with the
Defendant during the trial until overthrown by
evidence which convinces you, the jury, of the
Defendant’s guilt beyond a reasonable doubt.
Now in this case, the burden of proving that the
Defendant is guilty as charged rests upon the
State and before a conviction can be had, the
State must satisfy you of the Defendant’s guilt.
Unless the State so satisfies you of the
Defendant’s guilt beyond a reasonable doubt and
to a moral certainty, then he’s entitled to an
acquittal.
Now the phrase “reasonable doubt” is for the
most part self-explanatory and efforts to define it
don’t always clarify the term, but it may help you
some to say that the doubt which would justify an
acquittal must be an actual and substantial doubt
D-117
and not a mere possible doubt. A reasonable
doubt is not a mere guess or surmise, it’s not a
forced or captious doubt. If, after considering all
the evidence in this case you have an abiding con-
viction of the truth of the charge, then you are
convinced beyond a reasonable doubt and it would
be your duty to convict the Defendant.
Now the reasonable doubt which entitles an
accused to an acquittal is not some mere fanciful,
vague, conjectural or speculative doubt but a rea-
sonably substantial doubt arising from the evi-
dence and remaining after careful consideration of
the testimony such as reasonable fair-minded and
consciencious men and women would entertain
under all the circumstances. Now you will observe
the State is not required to prove the Defendant’s
guilt beyond all doubt. Few things in life are
provable beyond all doubt, but simply beyond a
reasonable doubt and to a moral certainty.
If, after comparing and considering all the evi-
dence in this case, your minds are left in such a
condition that you cannot say that you have an
abiding conviction to a moral certainty of the
Defendant’s guilt, then you are not convinced
beyond a reasonable doubt and the Defendant
would be entitled to an acquittal. Now I read to
you the indictment in this case. The indictment in
this case is no evidence at all against this
Defendant. It is merely the formal method under
our constitution by which a defendant is accused
of a crime and placed on trial. It provides no
proof, no presumption, no inference that this
Defendant is guilty of the offense charged therein.
D-118
In determining what the true facts are in this case,
you are limited to the evidence that has been
presented to you from the witness stand as
opposed to the matters which have been stated by
the lawyers in the course of the trial of this case.
What the lawyers have said, both for the State
and for the Defendant, is not evidence. What they
have argued to you at various points in the trial is
not evidence. They have a right, in fact, a duty at
the appropriate time during the trial to comment
on the evidence and draw reasonable inferences
from the evidence as they argue their respective
positions to you. But what they say is not evidence
and you should put what they say in a proper cate-
gory in you thinking and it should not be in the
evidence category, just as the indictment in this
case should not be in the evidence category.
If you are convinced beyond a reasonable doubt
that the Defendant committed the crime of
murder of the intentional killing type during a
robbery in the first degree as alleged in both
counts or in either count of the indictment, then it
would be your duty to find the Defendant guilty of
the capital offense.
Now the two components of the capital offense are
robbery in the first degree and murder of the
intentional killing type committed during robbery
in the first degree.
The Defendant commits the crime of robbery in
the first degree if he uses or threatens the use of
force against the owner of personal property or
any person present while in the course of —
personal property with the intent to overcome his
D-119
physical power of resistance in order to compel his
acquiescence in the taking of the personal property
and in the course of said theft or in the attempt
thereof, either, one, intentionally causes serious
physical injury or death to a person or, two, is
armed with a deadly weapon or dangerous
instrument.
Now the words “in the course of committing a
theft,” means acts which occur in the attempt to
commit or in the commission of theft or in the
immediate flight after the attempt or commission.
A person commits the crime of theft of property if
he knowingly obtains or exerts unauthorized con-
trol over the property of another with intent to
deprive the owner of his property. An attempt
occurs when a person with intent to commit a spe-
cific offense, does any overt act towards the com-
mission of the offense.
The statute uses the words “deadly weapon.” A
deadly weapon is a firearm or anything manifestly
designed, made or adapted for the purpose of
inflicting death or serious physical injury and that
term includes, but is not limited to, a pistol, rifle
or shotgun. Serious physical injury is physical
injury which creates substantial risk of death or
which causes serious and protracted disfigurement
of health or protracted loss of function of any body
organ. If, in this case you are convinced beyond a
reasonable doubt that the Defendant committed
the crime of robbery in the first degree as previ-
ously defined of Mr. James R. Bailey, then the
first component of the capital offense as charged
in the indictment would have been proven. Now, a
defendant commits the crime of murder of the
D—-120
intentional killing type if, with intent to cause the
death of another person, he causes the death of
that person or another person. A person acts
intentionally with respect to a result or to conduct
when his purpose is to cause that result or to
engage in that conduct. The defendant must
intentionally, as opposed to negligently, accidently,
or recklessly cause the death of the deceased in
order to invoke the capital statute. That applies
both as to Count I, Mr. Pickens, and as to Count
ll, Mr. Bailey. The fact that someone dies or is
killed during the course of a robbery, does not
automatically provide that intent. The intent to
kill must be real and specific in order to invoke the
capital statute. To be a capital offense, the
murder of the intentional killing type must have
been committed during robbery in the first
degree. During means in the course of or in con-
nection with or in immediate flight therefrom. In
this case, if you’re convinced beyond a reasonable
doubt that the Defendant committed the crime of
robbery in the first degree as previously defined,
and during the course of the robbery, committed
the murder of the intentional killing type of Adam
Pickens as to Count I, or/and of J.R. Bailey, as to
Count II, or either of them, by the means alleged
in the indictment, then the second component of
the capital offense as charged in the indictment
would have been proven. Therefore, if you’re con-
vinced by the evidence beyond a reasonable doubt
that the Defendant committed the crime of
murder of the intentional killing type as to Adam
Pickens in Count I and as to J.R. Bailey in Count
II or either or them by the means alleged in the
indictment during a robbery in the first degree,
then it would be your duty to find the Defendant
D-121
guilty of the capital offense charged in both counts
or either of them as charged in the indictment.
On the other hand, if you’re not convinced by the
evidence beyond a reasonable doubt that the
Defendant committed the crime of murder of the
intentional killing type of Adam Pickens as to
Count I and J.R. Bailey as to Count II or either
of them by the means alleged in the indictment or
if you are not convinced by the evidence beyond a
reasonable doubt that said murder of the inten-
tional killing type was committed during a robbery
in the first degree as previously defined, commit-
ted by the Defendant, then the Defendant cannot
be convicted of the capital offense charged in the
indictment. Now as I previously instructed you,
embraced within the charge of each count of the
indictment is the lesser included offense of
murder. A person commits the crime of murder if,
one, he causes the death of another person, and in
performing the act or acts which caused the death
of the person he intended to kill that person or
another person.
Now, as to Count I, to sustain the charge of
murder in this case, the State, by the evidence,
must prove beyond a reasonable doubt the follow-
ing elements of the offense: one, that Adam
Pickens is dead. Two, that the Defendant, Victor
R. Stephens, caused the death of Adam Pickens.
That is, that he died as a result of being shot by
the Defendant. Third, that in committing the acts
which caused the death of Adam Pickens, the
Defendant acted with intent, and, four, that in
doing the act which caused the death of Adam
Pickens, the Defendant, Victor Stephens, was not
D-122
justified in using whatever physical force upon
another person he reasonably believed was neces-
sary in order to defend himself or a third person
from what he reasonably believed at the time to be
the use of imminent use of unlawful physical force
by that other person.
Now, as to Count II, to sustain the charge of
murder in this case, the State, by the evidence,
must prove beyond a reasonable doubt, the follow-
ing elements of the offense: One, that J.R. Bailey
is dead. Two, that the Defendant, Victor
Stephens, caused the death of J.R. Bailey, that is,
that he died as a result of being shot by the
Defendant. Three, that in committing the act
which caused the death of J.R. Bailey, the
Defendant acted with intent and, four, that in
doing the act which caused the death of
J.R. Bailey, the Defendant was not justified in
using whatever physical force upon another person
he reasonably believed was necessary in order to
defend himself or a third person from what he rea-
sonably believed at the time to be the use or immi-
nent use of unlawful physical force by that other
person. “With intent” means that it was the
Defendant’s purpose to cause the death of another
person.
Now, ladies and gentlemen, expert witness have
testified in this case and they’ve been permitted to
express opinions or draw conclusions. In passing
upon the facts, you are not required to accept con-
clusions or opinions of expert witnesses, but must
determine for yourselves the weight to be given
such testimony and evidence when considered in
connection with all the other evidence material to
D-123
this issue. These witnesses have testified and
expressed opinions based upon assumed facts,
some of which were set forth perhaps in a hypo-
thetical question. The weight to be accorded the
testimony is dependent upon the truth of facts
stated in the hypothetical question or questions
and before considering the opinions, you should
first examine carefully the materia! facts stated in
the hypothetical questions and be reasonably satis-
fied that they have been substantially proven to be
true.
Now what is an expert? Simply stated, an expert
is one or an expert is one who, by education, train-
ing and/or experience has attained such skill,
knowledge, or experience in some science, profes-
sion, business or occupation not of common knowl-
edge to the average layman. Certainly, witnesses
have testified and have been permitted to express
opinions or draw conclusions. In passing upon
these facts, you are not required to accept these
conclusions or opinions of these witnesses, but
must determine for yourselves, the weight to be
accorded such testimony and evidence when con-
sidered in connection with all other evidence mate-
rial to this issue. Some of the evidence in this
case, of course, has been circumstantial evidence.
The test of the sufficiency of circumstantial! evi-
dence is whether the circumstances as proved
produced a moral conviction to the exclusion of all
reasonable doubt of the guilt of this Defendant.
That is, whether they are incapable of explanation
upon any reasonable hypothesis consistent with the
Defendant's innocence. There should not be a
conviction upon circumstantial evidence unless, to
a moral certainty, it excludes every other
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reasonable hypothesis than that of the guilt of this
accused. No matter how strong may be the cir-
cumstances, if they can be reconciled with the
theory that the Defendant is innocert, then the
guilt of the accused is not shown by the full mea-
sure of proof the law requires and the Defendant
should be acquitted.
Now, ladies and gentlemen, all 12 of you must
agree before you can reach any verdict in this
case. Your verdict must be the verdict of each and
every juror. You are the sole judges as to the
weight that should be given to all the testimony in
this case. As I told you, it’s my duty to decide the
law, it is your duty to decide the facts. I don’t
want you to think from any ruling I have made or
in any of these charges, that I think one way or
the other about the facts of this case. You take
the testimony of the witnesses, all the proper and
reasonable inferences therefrom, apply your good
common sense, and in an impartial and honest
way, determine what you believe to be the truth.
You should weigh all the evidence and reconcile it
if you can reasonably do so. But if there is irrec-
oncilable conflicts in the evidence, you ought to
take that evidence which you think is worthy of
credit and give it just such weight as you think it’s
entitled to receive.
In doing so, you may take into consideration any
interest which any witness might have been shown
to have in the outcome of this case. If you believe
that any material part of the evidence of any wit-
ness was wilfully false, you may disregard all of
the testimony of such witness.
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Now with regard to the alleged confession or
statements of the Defendant in this case. You
may consider all of the facts and circumstances
surrounding the taking of the alleged confession or
statement in determining the weight and credibili-
ty, if any, which you give to the alleged confession
or statement. In exercising your exclusive prerog-
ative of determining the credibility of the evidence
or the weight to which the evidence is entitled, you
shall consider the circumstances under which the
confession was obtained, the means by which it
was elicited, including the situation and mutual
relations of the parties.
Now while I determine the voluntariness of the
confession, you, the jury, determine its weight and
credibility and you may disregard an alleged con-
fession and you may disregard an alleged confes-
sion which is unworthy of belief or in which you
entertained a reasonable doubt as to its truth.
Now the fact in this case that the Defendant did
not testify cannot be considered in determining the
Defendant’s guilt or innocence and no inference
nor conclusion should be drawn by you about that
fact nor should that fact have any weight with you
in reaching a verdict. Now as I stated to you in
this case, there are two counts contained in the
indictment charging this Defendant in Count I
with the offense of murder of Adam Pickens
during robbery and Count II] with the offense
murder of J.R. Bailey during robbery. You must
consider the evidence as to cach count separately
and determine as to the charge contained in cach
count, whether the Defendant had been proved
guilty of the offense charged therein beyond a
D-126
reasonable doubt. If you find from your
consideration of all the evidence that the State has
proved beyon” a reasonable doubt each of the nec-
essary elements of the capital offense of murder
during robbery as to Count I of the indictment,
then your verdict should be that you find the
Defendant guilty of the offense of capital murder
of Adam Pickens during robbery as charged in
Count I of the indictment.
Now if, on the other hand, from your considera-
tion of the evidence or lack of evidence, you are
not convinced the State has proven each of the
essential elements of the offense of capital murder
of Adam Pickens during robbery beyond a reason-
able doubt, then you must find the Defendant not
guilty of the offense of capital murder as charged
in Count I of the indictment. Now, as I told you,
embraced within the offense of murder of Adam
Pickens during robbery as charged in Count I of
the indictment is a lesser included offense of
murder. If, after your consideration of the evi-
dence or lack of evidence, you are not satisfied
that the Defendant is guilty of the principal
offense of capital murder as charged in the indict-
ment, then you must next consider the evidence as
to the lesser included offense of murder and deter-
mine whether the Defendant has been proved
guilty of such lesser included offense beyond a
reasonable doubt. If you find from your consider-
ation of all the evidence the State has proved each
of these elements of the lesser included offense of
murder beyond a reasonable doubt, then your ver-
dict should be that you find the Defendant guilty
of the offense of murder embraced within the
charge of capital murder contained in Count I of
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the indictment. If, on the other hand, from your
consideration of the evidence or lack of evidence
you are not convinced the State has proven the
essential elements of the lesser included offense of
murder beyond a reasonable doubt, then you must
find the Defendant not guilty of the offense of
murder of the lesser included offense contained in
Count I of the indictment. Now also as to Count
IT of the indictment embraced within that offense
of murder of J.R. Bailey during robbery as
charged in Count II, is the lesser included offense
of murder also. If, after consideration of the evi-
dence or lack of evidence, you are not satisfied
that the Defendant is guilty of the principal
offense of capital murder of J.R. Bailey as
charged in the indictment, you must next consider
the evidence as to the lesser included offense of
murder and determine whether the Defendant has
been proved guilty of such lesser included offense
beyond a reasonable doubt. If you find from your
consideration of all the evidence the State has
proved the elements of the lesser included offense
of murder beyond a reasonable doubt, then your
verdict should be that you find the Defendant
guilty of the offense of murder embraced within
the charge contained in Count II of the
indictment.
If, on the other hand from your consideration of
the evidence or lack of evidence you are not con-
vinced the State has proven the essential elements
of the offense of capital murder of J.R. Bailey
during a robbery — of murder, the lesser included
offense under the capital offense as charged in the
indictment, then it would be your duty to find the
Defendant not guilty of the offense of murder, a
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lesser included offense under Count II of the
indictment.
Now after you have received these instruments,
you will be given forms for the recording of your
verdict and you'll be taken by the bailiff to the
jury room where you will begin your
deliberations. When you have reached a verdict in
this case, you will complete one of the forms in the
form given to you and one of your number to be
selected and designated by you will sign the ver-
dict of the jury as the foreman or forewoman as
the case may be. Again, the verdict returned by
you must be the verdict of all 12 of you and when
the verdict has been reached, it will be necessary
for you to return to the Court and give your
verdict.
In the meantime, until you have reached a verdict
and it’s been received by this Court and you have
been discharged, it is absolutely necessary that all
of you stay together and you will not separate even
for a moment.
Now I have before me the jury verdicts as to each
count in this indictment. I will read these verdicts
to you. The order in which I read them to you, is
the order in which they were handed to me. You
will not think that I think one way or the other by
virtue of what verdict form I read first.
“We, the jury, find the Defendant, Victor Remar
Stephens, guilty of the capital offense of murder
of Adam Pickens during robbery in the first
degree as charged in Count I of the indictment.”
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“We, the jury, find the Defendant, Victor Remar
Stephens, guilty of the Capital offense of murder
of J.R. Bailey during robbery in the first degree
as charged in Count II of the indictment.”
“We, the jury, find the Defendant, Victor Remar
Stephens, not guilty of the capital offense of
murder of Adam Pickens during robbery in the
first degree as charged in Count I of the indict-
ment, but guilty of the lesser included offense of
murder.”
“We, the jury, find the Defendant, Victor Remar
Stephens, not guilty of the capital offense of
murder of J.R. Bailey during robbery in the first
degree as charged in Count II of the indictment,
but guilty of the lesser included offense of
murder.”
“We, the jury, find the Defendant, Victor Remar
Stephens, not guilty as to the charge in Count I of
the indictment.”
“We, the jury, find the Defendant, Victor Remar
Stephens, not guilty as to the charge in Count IJ
of the indictment.”
Now, before you begin your deliberations, it’s nec-
essary that we take up some matters outside your
presence. Hopefully, that will be very short, but
sit quietly for a moment.
D-130
Circuit Court of Hale County, Alabama
Discussion of Jury Charge Outside the Presence and
Hearing of the Jury.
Stephens Trial
Record 776—787
D-131
THE COURT: All right. Ladies and gentlemen,
we have to take up a matter outside your
presence. It’s now the noon hour and
you've heard the evidentiary phase. The
next remaining phase is the summation by
the attorneys followed by the instructions
from this court. Now we’re going to go to
lunch at this time.
While you’re on break, you should not dis-
cuss this among yourselves or allow anyone
to discuss it with you. Do not attempt to
learn anything about this case while you’re
on break. So at this time, you’re excused
for lunch.
(Whereupon the Noon Recess was taken.)
(Whereupon the following proceedings
were held out of the presence and hearing
of the jury:)
MR. MORRIS: At this time Judge, the
Defendant would renew its motion to
exclude the State’s evidence and in the
alternative, to direct a verdict on behalf of
the Defendant and we incorporate as
grounds, the same grounds that were pre-
viously given to the Court.
THE COURT: Denied.
Now I’m going to charge on capital
murder, I’m going to charge on murder
during robbery of J.R. Bailey and Pickens
and
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