Opposition — Magwood v. Alabama

Office Supreme

FILED

MAY 24 1933

ALEXANDER L. tas.

CLERK

vo. 82-6560

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1982

BILLY JOE MAGWOOD,

Petitioner

v.

STATE OF ALABAMA,

Respondent

ON PETITION POR WRIT OF CERTIORARI

TO THE ALABAMA SUPREME COURT

RESPONDENT'S BRIEF IN OPPOSITION

CHARLES A. GRADDICK

ALABAMA ATTORNEY GENERAL

EDWARD E. CARNES

ALABAMA ASSISTANT ATTORNEY

GENERAL

LIAISON COUNSEL

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

205/834-5150

QUESTIONS PRESENTED FOR REVIEW

1. Should this Court use its certiorari powers to

review whether a state trial court properly applied settled

law concerning pre-trial publicity to a particular set of

facts?

2. Should this Court use its certiorari powers to

review a sufficiency of the evidence issue involving

insanity?

3. Does a criminal defendant examined by state paid

psychiatrists have the right to be examined by an additional

psychiatrist of his own choosing to be paid out of state

funds?

4. Was the curative judicial construction performed on

Alabama's 1975 capital punishment statute by the Alabama

Supreme Court in Beck v. State, 396 80. 2d 645 (Ala. 1980),

as a result of Beck v. Alabama, 447 U.S. 645 (1980),

unconstitutional?

The caption contains the names of all the parties in the

court below.

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR NIE l-... i

PARRTILI8puyUll l... 1

TABLE OF CONTENT „„ 11

TABLE OF WuTBSRIT IE 41

OPINIONS BEER 4 „„ „„ „„ „„ „„ „„

nlsoicrioũo . . 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........ 1

STATEMENT OF THE CASE. ccc cree .. 2

ARGUMENT .cccccccescecceceseeeeeeeeeseessessseeseseeesese 3

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED... cccccccesesssesessessese 3

I. THE PRE-TRIAL PUBLICITY QUESTION

WAS PROPERLY DECIDED AND PRESENTS

NO ISSUE WORTHY OF REVIEW BY

CERTIORARI... kk. bbb 3

II. THE QUESTION CONCERNING THE

SUPPICIENCY OF THE EVIDENCE

ON THE INSANITY ISSUE WAS

PROPERLY DECIDED AND PRESENTS

NO ISSUE WORTHY OF REVIEW BY

CERTIORARI . „„ 6

III. THE QUESTION CONCERNING DENIAL

OF PETITIONER'S REQUEST TO HIRE

AN ADDITIONAL PSYCHIATRIST OF

HIS OWN CHOOSING WAS PROPERLY

DECIDED AND PRESENTS NO SIGNIFI-

CANT 188oꝶů g 4

IV. THE QUESTION CONCERNING THE con-

STITUTIONAL PROPRIETY OF THE

ALABAMA SUPREME COURT'S DECISON

IN BECK v. STATE, 396 So. 2d 645

(Ala. 1980) (on cemand), WAS

CORRECTLY DECIDED SEL 10

G „4444 „ „„ 15

CERTIFICATE OF SERVICE. „ 15

TABLE OF AUTHORITIES

CASE PAGE(S)

Alabama v. Evans, No. A-858

* * r 2. 1005). 6 „„ „ „%% „0 6 6 66 66666 6666 „ 6 „4 „00

Attwell v. Nichols, 608 F. 2d

736 (Sth Circ. TOTO) cccccvccccccccccccccccsssccccosels

Beck v. Alabama, 447 U.S. 645

resten 10-11

Beck v. State, 396 So. 2d 645

a. 5. „„ „ „„ „ „ „ „„ „ „„ „„ „66666 „„ „ „„ „ 66 . 6 66 6644 2

11-1

Dobbert v. plorids, 432 U.S.

752 T eee eee eee esse besen

26295 v. Gibson, 372 So. 24

a. Dc ob edebccs 6009066500 06es bes evonesp ove

Ex parte 1222753 426 80. 2d

a. Dh cpcscedeecesesdcoscccsticctcecess ean

Gardner v. Florida, 430 U.S. 349

eee eilen

Spee v. Evans, 102 S. Ct.

Veste

Irvin v. Dowd, 366 U.S. 717

e r

Jackson v. State, 337 So. 2d

[747 (Miss. 1

ss. BIS Do vicocevddcocdeccscocoevedasceecesels

Jackson v. Virginia, 443 U.S.

rere

Jordan v. Watkins, 681 F. 2d

r 50. „ „eee ese eee eee eee

Jurek v. Texas, 428 U.S. 262

reelle

Kna v. Cardwell, 667 f. 2d

15 7 Toth Cir.), cert.

denied, 51 U.S.L.W. 3420

* 30, WED cccccedscccccaddedesccccccscccscesesowe

Lockett v. Ohio, 438 U.S. 586

R ˙» nenne

McGarty v. O'Brien, 188 F. 2d

1 st (fst Cir. 1951), cert.

* >! denied, 341 6.8. 928 „„.

222978 rata tate, 426 So. 2d

a. Tt. App. 162) sepeeese

CASE PAGE(S)

— v. Doud, 354 U.S. 457

.

Mur v. Plorida, 421 U.S. 794

neee eee e e s eee eee

Pierce v. State, 292 Ala. 473,

“S96 So. 24 218 (1974), cert.

denied, 419 u.S. 1130 (WV. 2

Proffitt v. Florida, 428 U.S.

eee ese ee e denen

Rose v. Hodges, 423 U.S. 19 .

eee ee eee eee ess ee esse

Satterfield v. Zahradnick, 572

F. 20 443 (4th Cir.), cert.

denied, 436 U.S. 920 646 10

Smith v. Phillips, 102 8. Ct.

eee ee eee eee eee

State v. Watson, 120 Ariz. 441,

She P.2d 1253 (1978), cert.

denied, 440 U.S. 924 ( .ꝑ 3

United States v. 2248810. F.

Ja 135 (7th ci T3981)

cert. denied, 102 8. et.

Tez

( bees

United States v. Provenzano,

$20 F. d sas (3rd Cir. SOOO) .ccccccscccacsencesene®

Utsler v. prackson. 315 F.

„o. 1970),

afr a, 440 7. 2d 140 (8th

Ar, cert. denied, 404

v. 8. 95 Ar WO

Ward v. Illinois, 431 U.S. 767

eee eee eee e ed eee

Wilkins v. Mar dent 402 F.

Su 7 (D. Md. 1975),

aff'd, §38 F. 2d 327 (4th

rr eee dee eee ee eee eee seeed

STATUTE PAGE(S

28 v. s. c. 11237063)

Code of W 1975,

= a Bh cccccoddsabddcccceuons e eee 10

OPINIONS BELOW

1. The opinion of the Alabama Court of Criminal Appeals

affirming petitioner's conviction and death sentence is

published as Magwood v. State, 426 So. 24 918 (Ala. Cr. App.

1982).

2. The opinion of the Alabama Supreme Court affirming

the Court of Criminal Appeals decision is published as

Ex parte Magwood, 426 So. 2d 929 (Ala. 1983).

JURISDICTION

The decision of the Alabama Supreme Court that

petitioner seeks to have this Court review was entered on

January 7, 1983. A timely application for rehearing was

denied on February 11, 1983. The petition was timely filed

on April 12, 1983.

This Court has jurisdiction pursuant to 28 U.S.C.

§1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The petition address«s issues involving the Eighth and

Fourteenth Amendments to the United States Constitution.

STATEMENT OF THE CASE

This case stems from the fact that, »loln March 1, 1979,

Billy Joe Magwood, the petitioner, shot and killed Coffee

County Sheriff Neil Grantham." Ex parte Magwood, 426 So. 2d

929, 930 (Ala. 1983). Petitioner was indicted, tried,

convicted, and sentenced to death in the Circuit Court of

Coffee County, Alabama for the Code of Alabama 1975,

§13-11-2(a)(5) capital offense of murdering a law enforcement

officer on duty or because of some official or job-related

act or performance of the officer. Magwood v. State, 426 So.

24 918 (Ala. Cr. App. 1982); Ex parte Magwood, 426 So. 2d 929

(Ala. 1983).

The procedures used at petitioner's 1981 trial and

sentence hearing were those promulgated by the Alabama

Supreme Court in Beck v. State, 396 So. 24 645 (Ala. 1980).

The testimony presented at trial is summarized and the

legal proceedings more particularly detailed in Magwood v.

State, 426 So. 2d at 920-921, and Ex parte Magwood, 426 So.

2d at 930-931.

ARGUMENT

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED

The petition for a writ of certiorari should be denied

because the Alabama appellate courts correctly applied this

Court's applicable decisions to each of the four issues

raised in the petition. The first two issues involve abuse

of discretion arguments peculiar to the facts of this case

which are not of sufficient importance to merit certiorari

review by this Court. The third and fourth issues are of

wider sienificance but were correctly decided below.

1. THE PRE-TRIA!L, PUBLICITY QUESTION

WAS PROPERLY DECIDED AND PRESENTS

NO ISSUE WORTHY OF REVIEW BY

CERTIORARI

The first question addressed in the petition concerns

the pre-trial publicity issue. Pet. at 6-7. The Alabama

Court of Criminal Appeals discussed that question in the

following part of its opinion:

Appellant asserts the trial court

abused its discretion in refusing to

grant his motion for a change of venue,

based upon prejudicial pre-trial public-

ity. The record indicates a large amount

of coverage was given to the sensational

and notorious crime by television, radio,

and the printed news media. However, the

vast majority of the news accounts were

strictly factual in nature and did not

editorialize in such a manner as to in-

flame the community. Coon v. State, 380

80. 20 980 N „ Irres

360 80. 2d 990 (Ala.1980). Additionally,

much of the coverage occurred at the time

of the murder, or in the months immedi-~

ately following the event, with rela-

tively little coverage occurring at the

time of the trial over two years later.

The existence of widespread publicity

in and of itself does not require a

change of venue. Dolvin v. 39

80. 2d 666 (Ala.Cr. PP.

391 80. 2d 677 (Ala.1980);

State, 367 80. 2d 590 (Als. cr.

3 N 0

Nine

WW

denied, 367 80. 2d 597 (Ala.1979). Mtb

Out proof of actual prejudicial influence

upon the jury, a trial court will not be

found to have abused its discretion in

refusing to grant a motion for a change

of venue based upon pre-trial publicity.

Dolvin, supra. We have reviewed the

record carefully, scrutinizing bot’ the

media coverage itself, and its e. ect

upon the jury venire as revealed by the

voir dire examination of the prospective

jurors. We note that any potential pre-

judicial effect of media coverage was

diminished by the passage of time.

Speigner, supra. The record contains no

2889185 of actual prejudice such as would

have rendered it reasonably unlikely that

the appellant could secure a faic and im-

partial trial. Dolvin, Supra. .«--

Magwood v. State, 426 So. 2d 918, 923 (Ala. Cr. App. 1982).

The Court then quoted a representative sample of jury voir

dire questions and answers, id., at 924, and concluded:

Of the entire venire, one juror an-

swered that he had a fixed opinion as to

appellant's guilt or innocence. This ju-

ror was an employee of the Coffee County

Sheriff's Department which had been in-

volved in the investigation of the Sher-

iff's assassination, and he was excused

from serving. None of the questions of

appellant's counsel concerning prejudice

as a result of publicity were answered in

the affirmative. Two jurors expressed an

opinion of possible partiality, but

stated it was based upon their long-time

friendship with Sheriff Grantham, not

pre-trial publicity. Both jurors were

excused, The burden is upon appellant to

demonstrate the actual existence of 2

prejudicial opinion in the mind of the

jurors which will raise a presumption of

partiality. Speigner, supra. The intro-

duction of news articles alone, without

more, is not sufficient evidence to jus-

tify a change of venue; their prejudicial

effect must be shown. Dolvin, supra at

674; Dial v. State, “i . 280 871 aes

cr. App. „ revers on other grounds,

387 80. 2d 879 TAla. 1980).

The appellant in the instant case pre-

sented no evidence that the jurors were

actually prejudiced against the appel-

lant's case as a result of extensive pub-

licity. Without such proof, this court

could not find error in the trial court's

refusal to grant a motion for change of

venue. Dolvin, supra; Moberg v. State,

385 So.2d 74 (Ala.Cr.App. 7 „ Su-

pra.

Id., at 924-925.

The Alabama Supreme Court addressed the question in a

similar fashion:

The petitioner raises several points

of error for our consideration. First,

petitioner asserts that it was error for

the trial court to deny his motion for

change of venue based on prejudicial pre-

trial publicity.

Absent a showing of abuse of discre-

tion, the ruling of the trial court on 4

motion for Wee of venue pig ae —

disturbed. 8 ner v. State, 80. 2d

590 Allr cert. denied, 367

80. 2d 597 (Ala.1979). The defendant has

the burden of showing that he will de un-

able to receive an impartial trial and an

unbiased verdict at the present locale.

Speigner, supra.

Absent a showing of actual prejudicial

influence upon the jury, the trial court

was not in error in refusing to grant 4

motion for change of venue. Dolvin v.

State, 391 So.2d 666 (Ala.Cr.App.1979),

att’d, 391 80. 2d 677 (Ala.1980). The pe-

oner rests his assertion of bias on

his impressions of public feeling at the

time of the trial. Petitioner states in

his brief, "Defendant's proof of such

prejudicial influence was only displayed

by the jury's verdict regarding his san-

ity." (Emphasis added.) Petitioner ap-

pears to contend that because the jurors

found him to be sane they must have been

prejudiced against him, This circuitous

reasoning does not constitute a showing

of actual prejudice as required by the

case law.

Our review of the voir dire examina-

tion of the jurors reveals no indication

of possible bias. We agree with the

Court of Criminal Appeals that the pub-

licity surrounding the crime was strictly

factual in nature and was not designed to

inflame the community. Further, the

trial took lace two years after the

crime. Even if we considered the public-

ity prejudicial, clearly the passage of

time would diminish any prejudicial ef-

fect of the media coverage. See, 157821

ner, supra. Thus, the Court of Crimina

Kppeals did not err in holding that the

denial of petitioner's motion for change

of venue was not in error.

Ex parte Magwood, 426 So. 24 929, 931 (Ala. 1983).

The rules of decision applied to this question by the

Alabama appellate courts are entirely consistent with this

Court's decisions holding that the constitutional test is

whether a juror can put aside any impressions based on

pretrial publicity and render a fair verdict based on the

evidence. £E.g-, Dobbert v- Florida, 432 U.S. 282, 303

(1977); Murphy v. Florida, 42! U.S. 794, 800 (1975); Irvin

vy. Dowd, 366 U.S. 717, 722-723 (1961). It is also well-

established that the burden is on the defendant to show that

one or more members of the jury panel could not do 80. E. 4

United States v. Garza, 664 F. 2d 135, 138 (7th Cir. 1981),

cert. denied, 102 S. Ct. 1620 (1982); United States v.

Provenzano, 620 F. 2d 985, 995 (3rd Cir. 1980).

Petitioner does not dispute the fact that the Alabama

courte enunciated the correct principles of law. Instead, he

simply contends that those controlling principles were

applied in this particular case in a manner constituting an

abuse of discretion. That does not state 4 substantial basis

for grant of certiorari, because this Court does not sit to

review the application of law to facts by the state courts.

II. THE QUESTION CONCERNING THE

SUFFICIENCY OF THE EVIDENCE

ON THE INSANITY ISSUE WAS

PROPERLY DECIDED AND PRESENTS

NO ISSUE WORTHY OF REVIEW BY

CERTIORARI

On pp. 7 - 11 of his petition, the petitioner asks this

Court to hold that the trial court abused its discretion in

submitting the issue of petitioner's sanity to the jury. He

made the same request of the Alabama Court of Criminal

Appeals, which summarized the applicable law as follows:

Appellant argues the jury's verdict

was contrary to the law and the evidence

presented, in that the jury should have

returned a verdict of not guilty by res-

son of insanity.

In reviewing the question of insanity,

the court must apply the following gen-

eral principles, enumerated in

v te, 357 80. 2d 683 (Ala.Cr.App.),

. „ 357 80. 2d 690 (A1. 197 :

6

Nee APRN TA re eee: Ae Oth

ball yo ae | rin, ee - *

a

„1. By statute, there is a presumption

of sanity extending to all persons

over the age of 14.

"2. The defense of insanity is an af-

firmative defense. The burden of

proving this defense rests upon the

defendant and never shifts to the

state.

"3. The burden upon the defendant is

to establish the issue of legal insan-

ity dy a preponderance of the

evidence and to the reasonable satis-

faction of the jury.

"4. The question of insanity at the

time of the commission of the crime is

a matter to be determined by the jury

from a consideration of all the evi-

dence.

„5, In making its determination, the

jury may reject all expert testimony

though it is without conflict.

"6. However, opinion testimony, even

of experts must be weighed by the jury

and may not be arbitrarily ignored.”

However, where proof of insanity is

both overwhelming and uncontradicted, the

evidence of insanity may be so strong and

undisputed that the jury should be so in-

structed, and a jury verdict to the con-

trary must de reversed. Christian v.

State, 351 80. 2d 623 (Ala.1977).

Magwood v. State, 426 So. 2d 918, 921-922 (Ala. Cr. App.

1982). The appeals court then carefully reviewed the

conflicting psychiatric testimony presented by the two sides

in this case, id., at 922-923, and concluded:

After consideration of all the testi-

mony in this case, we do not find that

) the evidence of insanity was both over-

whelming and uncontradicted. There was

evidence presented which could have sup-

ported a reasonable inference that the

homicide was an act committed by a man

which the law would define as sane. Al-

. though conflicting evidence was presented

by the expert witnesses who examined ap-

pellant, it is clear that the issue of

whether appellant was sane or insane at

the time of the offense was a question

for the jury to decide. Nobis v. State,

401 80. 2d 191 (Ala.Cr.App.), 2d

204 (Ala.1981). The evidence was simply

not sufficient as a matter of law to

overcome the presumption of sanity and to

justify pena, the tyes verdict.

v. § „ 383

80. 2 92 (Ala. cr.

. 33. ° ied, 363 80. 2d 895 (Ala.

‘ 923

9 at 3

N

th **

VAN,

The Alabama Supreme Court reached the same conclusion in

the matter:

The second point of error raised by

petitioner is that the lower court erred

in submitting the case to the jury in

light of the “overwhelming and uncontra~

a@icted" evidence introduced by defendant

to rebut the presumption of sanity. This

issue was addressed by this Court in

Christian v. State, 351 80. 2d 623 (Ala.

„ wherein the Court established

guidelines on the insanity defense. The

Court reaffirmed the principle that the

defendant is presumed sane and that the

defendant has the burden of proof on the

issue of insanity. The defendant must

establish insanity by a preponderance of

the evidence and the question is to be

determined by the jury, except in cases

where the evidence is “overwhelming and

uncontradicted." Christian v. State, 351

So. 2d at 624. See also, Lee v. state,

246 Ala. 343, 20 So.2d 471 ( .

In the case before us, the question of

insanity was submitted to the jury, based

upon conflicting testimony given by a

series of four expert witnesses. Dr.

Crook and Dr. Cooper, both practicing

physicians, testified for the State that

at the time of their examinations of the

defendant in June of 1979 he was sane.

Dr. Doug McKeown, a clinical psychologist

who examined the petitioner in April of

1981, testified that in his opinion the

defendant knew the difference between

right and wrong on the day Sheriff Gran-

tham was killed. Pinally, the deposition

of Dr. Rudder, a psychiatrist, was read

at trial. In Dr. Rudder's opinion, g-

re was insane at the time of the kil-

ing.

We cannot say that the evidence in

this case was overwheiming and uncontra~

dicted on the issue of petitioner's claim

of insanity. The trial court was not in

error in submitting the question to the

jury.

Ex parte Magwood, 426 So. 24 929, 931 (Ala. 1982).

The conclusion of the Alabama appellate courts on this

question is correct. Extrapolating from Jackson v. Virginia,

443 U.S. 307 (1979), it simply cannot be said that no

rational trier of fact could have found that petitioner

failed to prove he was insane at the time of the crime,

especially since three of the four expert witnesses who

a As,

testified on the subject testified that petitioner was sane

at that time. More fundamentally, this Court's scarce

certiorari resources should not be squandered in making the

kind of abuse-of-discretion review that petitioner requests.

111. THE QUESTION CONCERNING DENIAL

OF PETITIONER'S REQUEST TO HIRE

AN ADDITIONAL PSYCHIATRIST OF

HIS OWN CHOOSING WAS PROPERLY

DECIDED AND PRESENTS NO SIGNIFI-

CANT ISSUE

The third contention that petitioner raises is that the

trial court abused its dicretion in failing to permit him to

select a psychiatrist of his own choosing to be paid for by

the state. Pet. at 11-14. The Alabama Court of Criminal

Appeals addressed and rejected that contention for the

following reasons:

The trial court's failure to grant ap-

pellant's request for funds to hire a

psychiatrist or psychologist of his own

choosing is urged by appellant as rever~

sible error. We do not agree. As has

often been stated, a denial of funds to

pay experts for investigations and the

assistance of experts does not amount to

a deprivation of constitutional rights.

Thi n v. State, 371 80. 2d 385 (Als. cr.

Kooy, cert. denied, 372 So.2d 387 (Ala.

1979); Brown v. State, 392 80. 2d 1248

(Ala. cr. FF. NN cer’. denied, 392 So.

2d 1266 (Ala.1981); Johnson v. State, 335

$0.24 663 (Ala.Cr App.) cert. denied,

235 80. 2d 678 (Ala.1976), cert. denied,

429 U.S. 1026, 97 S.Ct. 649, 50 L-Ed- 20

629 (1976). This general rule applies

equally to psychiatric experts and speci-

alists. Nelson v. State, 405 So.2d 392

(Ala. cr. App: 1950), reversed on other

rounds, 405 8. 20 401 (Ala.1981). =

Tretenaiiy. as indicated heretofore in

this opinion, the trial court exhausted

all available sources to assist appellant

in presenting evidence in support of his

insanity plea. Not one, but six experts

examined a llan a e ate's

expense. ark v. State, 56 Ala.App. 57,

1 So.24 813 (1974), writ uashed, 294

Ala. 493, 318 80. 2d ezz (1 » cert.

denied, 423 U.S. 937, 96 S.Ct. 295, 15

Pd. 2d 270 (1975). Three experts were

inde nt and th

pert for preparation of his defense,

there exists no constitutional right to

have a private psychiatrist of the de-

fendant's own choosing appointed at pub-

lic expense. Willie Clisby, Jr. v.

State, 80. 24 A. Cr. App. 7

Biv. S76 (Ms. May 2, 1982]. The trial

judge's actions appropriate protected ap-

pellant's rights in this regard.

Magwood v. State, 426 So. 2d 918, 925 (Ala. Cr. App. 1982)

(emphasis added and deleted). The Alabama Supreme Court

agreed. Ex parte Magwood, 426 So. 2d 929, 932 (1983).

An indigent criminal defendant is not entitled to

appointment of a private psychiatrist of his own choosing to

be paid out of state funds. E. 4 Satterfield v. Zahradnick,

572 F. 2d 443, 445 (4th Cir.), cert. denied, 436 U.S. 920

(1978); Wilkins v. Maryland, 402 r. Supp. 76, 80-81 (D. Md.

1975), aff'd, 538 FP. 2d 327 (4th Cir. 1976); Utsler v.

Erickson, 315 f. Supp. 480, 482-483 (D. 8.0. 1970), aff'd,

440 r. 24 140 (8th Cir.), cert. denied, 404 U.S. 956 (1971);

McGarty v. O'Brien, 168 F. 24 151 (ist Cir. 1951), cert.

denied, 341 U.S. 928 (1951). Unless this Court is willing to

hold to the contrary, or is willing to hold that a criminal

defendant is entitled to have more than six experts examine

him, certiorari should not be granted on this question.

IV. THE QUESTION CONCERNING THE CON-

STITUTIONAL PROPRIETY OF THE

ALABAMA SUPREME COURT'S DECISON

IN BECK v. STATE, 396 So. 2d 645

(Ala. 1980) (on remand), WAS

CORRECTLY DECIDED BELOW

In Beck v. Alabama, 447 U.S. 625 (1980), this Court held

that the preclusion clause contained in Alabama's 1975

capital punishment statute, Code of Alabama 1975,

§13-11-2(a), could not constitutionally be applied in a death

sentence case to prevent instructing a jury on @ lesser

included non-capital offense which was supported by the

evidence. On remand, after briefing and oral argument, the

Alabama Supreme Court issued an opinion severing the

preclusion clause from the statute and promulgating new

procedures to be used in future trials and retrials under the

1975 statute. Beck v. State, 396 So. 2d 645 (Ala. 1980).

Petitioner's crime occurred before the decision in Beck v.

State, supra, and he was tried afterwards in compliance with

the procedures announced in that decision.

The petition raises the issue of whether petitioner's

trial under the Beck v. State, supra, procedures violated his

constitutional rights, particularly those arising under the

Separation of Powers Clause. Pet. at 14. The issue was

decided adversely to him below. Magwood v. State, 426 So. 2d

918, 928 (Ala. Cr. App. 1982).2 The issue is squarely

presented in this case, and it is not an insignificant one in

terms of the number of cases affected. While no exact

figures are available, there are approximately a dozen cases

in which Alabama defendants committed capital murder before

the December 19, 1980 date of the Alabama Supreme Court's

decision in Beck v. State, Supra, and were tried and

sentenced to death afterwards under the procedures specified

in that decision. The position of the State of Alabama is

simply that the matter was correctly decided below.

Ipetitioner asserts that in Beck v. Alabama, supra, this

Court found the 1975 statute "to be patently unconstitutional

as a whole." Pet. at 14. The falsity of that assertion is

established by & rv. Evans, 102 S. Ct. 2049 (1982), which

upheld a * Capital conviction in a death sentence

case, and by Alabama v. Evans, No. A-858 (U.S. April 22,

1983) (per curiam), which vacated a lower court stay and

el the defendant in that same pre-Beck case to be

executed.

2petitioner did not raise the issue in his certiorari

petition and brief to the Alabama Supreme Court, and

8 that court did not address it. See, Ex parte

426 So. 2d 9292 (Ala. 1983). er oner

or

HF 82747731% raise that issue in the applicat

rehearing he filed in the Alabama Supreme Court, which was

denied without opinion.

The Alabama Supreme Court recognized and addressed the

separation of powers issue in the Beck v. State, supra,

opinion itself:

Under the separation of powers doctrine,

this Court cannot change the offense, but

a change in procedure to comport with

constitutional requirements is not imper-

missible. In Dobbert ». Plorida, 432

U.S. 282, 97 S.Ct. 2290, 53 L.6d.24 344

(1977), the Supreme Court of the United

States rejected an argument that a proce~

dural change in the method of sentencing

to conform to Furman requirements was ex~

st facto. The legislature has adopted

@ sentencing scheme and has required

jury participation. What we do is to

adopt a rule whereby that scheme will

comport with constitutional require-

ments.

396 So. 24 at 662 (majority opinion). Mr. Justice Adams,

concurring specially, agreed:

The key issue of the case, of course,

is whether our Court can make these

changes in Alabama's death penalty stat~

ute and escape the objection that we are

invading the province of the legislature.

Because 1 believe that the changes made

by this Court are procedural and ane lo-

rative, I feel that the changes mandated

by the Court are well within constitu-

tional parameters, and comport with the

intent and purpose of the legislature in

its enactment of the death penalty stat~

ute.

Id., at 666. The curative judicial construction the Alabama

Supreme Court undertook in the Beck case in order te save the

1975 capital punishment statute was not unprecedented. The

same court had previously engaged in curative judicial

construction to save Alabama's obscenity statute, Pierce v.

State, 292 Ala. 473, 475, 296 80. 2d 218 (1974), cert.

denied, 419 U.S. 1130 (1975), and to save Alabama's statute

for the legitimation of illegitimate children, Everage v.

Gibson, 372 So. 24 829, 832-834 (Ala. 1979).

To the extent that Appellant's separation of powers

argument purports to have a federal constiturional basis,

it fails outright, because “([t)he principle of separation of

powers is not enforceable against the states as a matter of

federal constitutional law." E.g., Attwell v- Nichols, 608

. 2d 228, 230 (Sth Cir. 1979); see e-g-, Rose Ve Hodges, 423

u.S. 19, 22 (1975).

Both Jurek v. Texas, 428 U.S. 262 (1976), and

Proffitt v. Florida, 428 U.S. 242 (1976), establish tne

federal constitutional propriety of state judicial action to

conform capital punishment statutes to constitutional

requirements. As the opinion in Lockett v. Ohio, 438 U.S.

586, 606-607 (1978), noted, the crucial difference between

the Ohio statute which was struck down in that case and the

statutes which had been upheld in Proffitt and Jurek was that

the Plorida and Texas courts had construed the statutes of

those states to conform to the constitutional requirement

that all relevant mitigating circumstances be considered. In

addition, appellate review of sentencing, which was essential

to the constitutionality of the Florida statute, See,

Gardner v., Plorida, 430 U.5. 349, 361 (1977), was read into

that statute by the Florida Supreme Court. Proffitt v.

Plorida, 428 U.S. at 250-251.

Two recent federal appeals court decisions 3180 strongly

support the federal constitutional propriety of the Alabama

Supreme Court's decision in Beck v. State, Supra. In

Knapp v. Cardwell, 667 f. 2d 1253 (9th Circ.), cert. denied,

51 U.S.L.W. 3420 (Nov. 30, 1982), a group of Arizona death

row prisoners filed a class action lawsuit challenging the

propriety of the Arizona Supreme Court's decision in

State v. Watson, 120 Ariz. 441, 586 P.2d 1253 (1978), cert.

gente 440 U.S. 924 (1979). In Watson the Arizona Supreme

Court had reacted to Lockett v. Ohio, 438 U.S. 586 (1978), by

severing some offending language from the Arizona capital

punishment statute and then judicially construing the statute

to meet the newly enunciated constitutional standards.

The inmate plaintiffs in Knapp v. Cardwell, supra,

charged that the Arizona Supreme Court's curative judicial

et

construction violated the Eighth and Fourteenth Amendments,

the Double Jeopardy Clause, the Ex Post Facto Clause, and the

Article IV, Section 4 guarantee of a republican form of

government. The Ninth Circuit rejected all those claims and

held, in essence, that a state court's interpretation of a

state statute does not implicate the Federal Constitution and

is in effect, none of a federal court's business. 667 F.2d

at 1260.

The other recent federal appeals court decision on the

issue is Jordan v. Watkins, 681 FP. 2d 1067 (Sth Cir. 1982),

which involved the Mississippi Supreme Court's decision in

Jackson v. State, 337 So. 2d 1242 (Miss. 1976). In Jackson

the Mississippi Supreme Court rewrote that state's capital

punishment statute to conform with the 1976 Supreme Court

decisions prohibiting mandatory death penalties. Jordan v.

Watkins, 681 F. 2d at 1077-1078. The Pifth Circuit in Jordan

upheld Mississippi's Jackson decision against federal

constitutional attack. Jordan v. Watkins, 681 F.2d at

1079-1080. Since the Mississippi Supreme Court's curative

judicial construction in Jackson was far more extensive than

the Alabama Supreme Court's action in Beck v. State, supra,

the Jordan decision is strong authority tor the

constitutional propriety of the Beck decision.

Finally, this Court itself has repeatedly held that the

interpretation of state statutory provisions and the question

about what happens to the remainder of a state statute when

part of it is declared unconstitutional are state law

questions to be decided by the highest court of the state.

E.g., Ward v. Illinois, 431 U.S. 767, 772 (1972); Morey v.

Doud, 354 U.S. 457, 470 n. 16 (1957). See, Smith v.

Phillips, 102 S. Ct. 940, 948 ("Federal courts have no

supervisory authority over state judicial proceedings.

The Alabama Supreme Court has decided those state law

1 .

i

questions and this Court should not interfere with its

decision.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

A.

ALABAMA ATTORNEY GENERAL

ALABAMA ASSISTANT ATTORNEY

GENERAL

LIAISON COUNSEL

250 Administrative Building

64 North Union Street

Montgomery, Alabama 36130

205/834-5150

CERTIFICATE OF SERVICE

I, Edward E. Carnes, a member of the Bar of the Supreme

Court of the United States, do hereby certify that I did

serve a copy of this brief on petitioner by placing a copy in

the United States mail, postage prepaid, and properly

addressed to his counsel of record as follows:

Hon. J. L. Chestnut, Jr.

Chestnut, Sanders, Sanders & Turner

p. O. Box 1305

Selma, Alabama 36701

I further certify that I have served all parties

required to be served.

Done this 19 a day of May, 1983.