Petition — Tomlin v. Alabama

83-1538

Supreme Cort of the nite States

October Term 1983

PHILLIP WAYNE TOMLIN,

Petitioner,

vs.

STATE OF ALABAMA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

OF ALABAMA

Counsel For Petitioner

James E. Atchison

Richard D. Horne

William B. Jackson, I

301 St. Joseph Street

P.O. Box 1706

Mobile, Alabama 36633

1 - 205 - 432-4546

QUESTIONS PRESENTED FOR REVIEW

I. Whether Petitioner, Phillip Wayne

Tomlin, was prejudiced by the operation of

the preclusion clause in Alabama's 1975 death

penalty act, his conviction for capital

murder thus being an unconstitutional denial

of his right to due process, and entitling

the said Petitioner to a new trial.

A. Whether the Petitioner, Phillip

Wayne Tomlin, was prejudiced by the operation

of the preclusion clause in Alabama's 1975

death penalty act, and denied due process of

law, by the ex post facto determination of :

the Alabama Supreme Court that an alibi defense 3

would conclusively preclude the Defendant from

invoking or proffering evidence of, and

obtaining jury instructions, on a lesser

included offense in a new trial.

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B. Whether the Petitioner, Phillip

Wayne Tomlin, was prejudiced by the operation

of the preclusion clause in Alabama's

1975 death penalty act, and denied due process

of law, insofar as the State of Alabama

failed to prove beyond a reasonable doubt

_the requisite aggravating elements of capital

murder, the jury was precluded from finding

the Petitioner guilty of a lesser included

offense, and the jury was also precluded from

considering aggravating and mitigating circum-

stances in a bifurcated hearing.

II. Whether the Petitioner, Phillip

Wayne Tomlin, was prejudiced by the operation

of the preclusion clause in Alabama's 1975

death penalty act, and his conviction for

capital murder was an unconstitutional denial

of equal protection under the law. -

QUESTIONS PRESENTED FOR

REVIEW * * * ll > . . ll . .

CITATION TO OPINIONS DELIVERED

BY THE ALABAMA SUPREME COURT

GUECTION . ... s cc te

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ....

STATEMENT OF THE CASE. .. .

HOW THE FEDERAL QUESTIONS

WERE RAISED AND DECIDED

UPON BELOW “ESE eae ee

REASONS FOR GRANTING THE

‘WRIT OF CERTIORARI... .

CONCLUSION al . > > . >. 7 >

CERTIFICATE OF SERVICE...

TABLE OF AUTHORITIES

TABLE OF CASES 3

PAGE :

Beck v. Alabama, :

447 U.S. 625 (1980) i Se ee 9,13,16 J

20,21,22,

25,26,28 4

4

Beck v. State, ;

396 So. 20 645 (Ala. 1980). 29 ’

Cook v. State, ‘

431 So. 2d 1322 (Ala. 1983) 12 a

Ex Parte Raines, 7

429 So. 24d 1111 (Ala. 1982) 25

Ex Parte Reed

407 So. 2a 162 (Ala. 1981) 16

Godfrey V. ee

U. . 980). . . . o 29

Ho rv. Bvans

iG U.S. 605 (1982) . 6° S16 Beueeees

23,24,28

Mylar v. Wilkinson,

So. (Ala. 1983) 19

Washington v. Strickland,

a : ss «

Seg ee ak ae nee eee gee

693 F. 2d 1243 (llth Cir. 19

1982) |

5,6,14,22

3

5

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m3 3 ;

a oes aeee

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PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

The Petitioner, Phillip Wayne Tomlin,

by and through his attorneys of record,

prays that a writ of certiorari issue to

review the judgment of the Supreme Court of

the State of Alabama, which judgment was

entered on rehearing on or about December

9, 1983.

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CITATIONS TO OPINIONS BELOW

The opinion of the Supreme Court of 4

E Alabama, on rehearing, is attached hereto in __

the appendix as Exhibit A. The opinion of a

the Alabama Court of Criminal Appeals can as

be found at 443 So. 24 47 (Ala. Crim. App.

1979)

JURISDICTION © edi Se

Jurisdiction of the United States supreme”

Court is invoked pursuant. pea usc $1257(3) a

' technical deficiencies in format and type-size

amend the same and refile for docketing.

of the United States Supreme Court.

Petitioner having asserted below and asserting

herein the deprivation of rights secured by

the Constitution of the United States. The

judgment sought to be reviewed was rendered

by the Alabama Supreme Court, on rehearing,

on December 9, 1983, and is attached hereto

in the appendix as Exhibit A.

The Petitioner timely filed this petition

for Writ of Certiorari on or about the 7th

day of February, 1984; however, due to

of the appendix, the said petition was returned

to counsel for the Petitioner, with leave to

The amended version of this petition for

Writ of Certiorari has been timely refiled in Pi

compliance with the directions of the Clerk ,

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

provisions of Alabama law:

This case involves the Pifth, Sixth, - :

Eighth and Fourteenth Amendments to the

Constitution of the United States.

This case also involves the following

Code of Alabama,

§13-l1-2(a) (7) and (10).

"If the jury finds the Defendant

guilty, it shall fix the

punishment at death when the

Defendant is charged by indict-

ment with any of the following

offenses and with aggravation,

which must also be averred in the

indictment, and which offenses

so charged with said

aggravation shall not include

lesser offenses...

(7) Murder in the first degree

when the killing was done for

a pecuniary or other valuable

consideration or pursuant to

a contract or for hire;...

(10) Murder in the first

wherein two or more human

are intentionally killed by the

Defendant by one or a series of

acts;..."

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The Petitioner, Phillip Wayne Tomlin,

was indicted by the Grand Jury of Mobile

County, Alabama on September 22, 1977 for

capital murder as defined in Code of

Alabama (1975), 13-11-2(a)(7) and (10).

On October, 13, 1977 the Petitioner was

arraigned, and pleaded not guilty to the

charges in the indictment. (R. pp. 1,2)

On March 20, 1978, a jury was struck

by the parties, and empaneled, whereupon

a trial began and continued. The State

of Alabama produced no eyewitnesses nor

any witnesses who could otherwise place

the Petitioner at the actual scene of the

crime. Instead, the prosecution relied

solely on the basis of circumstantial

evidence to get a jury to convict the

Petitioner, and mandatorily sentence him

to death without benefit of a bifurcated

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hearing before the said jury on the issue

of aggravating and mitigating

circumstances. At the close of the

State's evidence, the Petitioner filed a

written Motion to Exclude and a Judgment

of Acquittal and the said motions were

denied. (R. pp. 26-31, 161-165)

The Petitioner, Phillip Wayne Tomlin,

acting by and through his attorneys, and

believing that under the preclusion clause

in the statute it would be both a danger-

ous risk and fruitless in any event to J

produce evidence of tsetse included offenses

such as first degree murder and/or

second degree murder, then presented an

alibi defense in rebuttal to the State's

circumstantial case against him.

After the giving of plainly

inadequate, if not erroneous instructions

and reinstructions to the jury, which :

were excepted to by defense counsel, on

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Saturday, March 25, 1978, the jury returned

a verdict of guilty. (R. p. 33) (R.

973, 974, 979, 982-987) .

On the 21st day of April, 1978, the

Petitioner filed a motion for a new trial

and on May 26, 1978 the said motion was

denied. (R. pp. 39-174)

Thereafter, on December 8, 1978, the

court held a hearing ostensibly to

consider aggravating and mitigating

circumstances, sustained the verdict of

the jury, and sentenced the Petitioner,

Phillip Wayne Tomlin, to death. (R. pp.

175-179) Appeal was taken to the Court :

of Criminal Appeals of Alabama which |

affirmed the conviction, but remanded y

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the case to the trial court for a new 1

L 4

sentencing hearing to reevaluate

aggravating and mitigating circumstances,

and redetermine the Petitioner's sentence.

After Petitioner's application for 4

i) te TU Bee

denied by the Alabama Court of Criminal

Ce OE ee.

Appeals, a petition for writ of certiorari

was then timely filed before the Supreme

Court of Alabama, and granted.

On July 31, 1980 the Petitioner filed a

motion in the Supreme Court of Alabama

to reverse his conviction, in part on the

basis of the United States Supreme Court's

decision in Beck v. Alabama, 447 US 625,

100 S. Ct. 2382, 65 L. Ed. 392 (1980).

On August 28, 1981, the Supreme Court

of Alabama reversed the conviction and

ordered a new trial for the Petitioner,

Phillip Wayne Tomlin. Thereafter, the

State of Alabama filed an application for

rehearing before the Alabama Supreme

Court, contending that the decision of the

United States Supreme Court in Hopper

v. Evans, 456 US 605, 102 S. Ct. 2049, 72

L. Ed. 2d 367 (1982) precluded the

Petitioner's right to a new trial. |

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«On December 9, 1983, the Alabama 4

: Supreme Court granted the application for 4

‘ rehearing, withdrew its opinion of August 3

; 28, 1981 ordering a new trial, and affirmed ©

: the conviction of the Petitioner for ‘

capital murder, and remanded the case 3

back to the trial court for resentencing.

This case is now pending before the

United States Supreme Court on petition

for certiorari.

:

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SS ER ERT OP ene eee

HOW THE FEDERAL QUESTIONS WERE

RAISED AND DECIDED BELOW

In his Petition for Writ of Certiorari,

before the Supreme Court of Alabama, and

motions and briefs filed in support of the

said Petition for Certiorari and also filed

in opposition to the State of Alabama's

application for rehearing, the Petitioner

contended that he was prejudiced by the

operation of the preclusion clause in Alabama's

1975 death penalty act, and his conviction

for capital murder was an unconstitutional

denial of his right to due process of law

under the United States Constitution.

The Petitioner, Phillip Wayne Tomlin,

also necessarily raised the issue in his

briefs in opposition to the State of Alabama's

application for rehearing, that for the

Alabama Supreme Court to impose, ex post facto, —

a new unforeseeable rule of law, to-wit,

u eae GE ce Ab a i HE $0 Ee ae

that defendants who had raised an alibi

defense under Alabama's 1975 death penalty

statute could not under any circumstances :

claim prejudice, deprived the pecictened: and ie:

a class of unwary capital murder defendants

and their respective attorneys, of their

constitutional right to due process, effective

assistance of counsel, and equal protection

under the law.

The Supreme Court of Alabama, on rehear-

‘ing, issued an opinion rejecting all of the :

contentions raised by the Petitioner. The 3

Alabama Supreme Court both failed to directly ~~

address and summarily disposed of these a

constitutional infirmities by misguided 3

reliance upon a precedent and new, unfore- _

seeable rule of law it had established in the

aftermath of Hopper v. Evans, 456 US 605, 102

“4 S. Ct. 2049, 72 L. Ed. 24 367 (1982); to-wit,

: in the case of Cook v. State, 431 So. 2d

«1322 (Ala. 1983).

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eT gi TERE gee RE REE 5 he a Peet) a ee Se ee

Ee a Ee Ne SS ee ee Ne

REASONS FOR GRANTING THE WRIT OF

CERTIORARI

I. THE DECISION OF THE ALABAMA

4 SUPREME COURT ON REHEARING IN THE CASE AT

3 BAR, AND THIS PETITION FOR WRIT OF

CERTIORARI, RAISES SIGNIFICANT CONSTITUTIONAL

ISSUES OF FIRST IMPRESSION, AND COMPELLING

PUBLIC POLICY CONSIDERATIONS, BEFORE THE

,* . Sore ae. ee

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| UNITED STATES SUPREME COURT.

‘ A. Petitioner, Phillip Wayne Tomlin,

: has been deprived of due process of law,

| effective assistance of counsel, and equal

protection under the law by the ex post

facto determination of the Alabama Supreme

;

: Court that an alibi defense raised under

4 Alabama's 1975 death penalty statute, which

: statute was declared by the United States

Supreme Court to be unconstitutional in

_—s« Beck _v. State of Alabama, 447 US 625, 100

S. Ct. 2382, 65 L. Bd. 2d 392° (1980),

would conclusively preclude any claim by

«13<

the Petitioner that different trial tactics

and strategy could and would have been

employed, evidence was and could have been

invoked and/or introduced, and jury

instructions obtained, that establish that

Petitioner was guilty of no more than a

lesser included offense. The question of

whether a defendant, charged with capital

murder under Alabama's 1975 death penalty

statute, to-wit, Alabama Code (1975),

§13-11-2, et seq., and unwary of a new

and unforeseeable rule of law which would

evolve from appellate decisions handed

down long after the trial of the Petitioner

for capital murder, is prejudiced thereby,

is a significant constitutional issue

compelling consideration by the United

States Supreme Court.

In order to fully understand the

constitutional violations suffered by the

Petitioner, Phillip Wayne Tomlin, it is

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imperativeto understand the perspective of

counsel for the Petitioner at the time of

trial in 1978. The Alabama Supreme Court,

in epitomizing the constitutional defects :

in Alabama's 1975 death penalty statute,

clearly identified how limited the options

were for a Defendant charged with capital

murder under the then existing law of

Alabama, when it held:

"A majority of this court,

however, also recognized

that the death penaity

statute applicable to Beck, t

because of its preclusion —

Clause, did not allow jury

instructions on lesser

included offenses. Hence,

rrelevant

ssible at tria

under t statute. cordingly,

cases of persons tried

and convicted under Code of

1975, §13-ll-1 to 9, as

construed in Beck ee State,

supra, have been

for new trials on the merits

in order to afford them the

et 4 a

any offer of evidence eof, &

or any plea ereon 7

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That result, of course,

represents adherence to, not

e ure from, the rule

requiring the jury

nstruction on lesser included

offenses n such a ge

is warranted Py evidence.

Ss Ex Parte

Reed, 407 So. 2d %52, I63

(Ala. 1981)

The Petitioner herein,Phillip Wayne

Tomlin would respectfully submit that the

operation of the preclusion clause in the

death penalty statute under which he was

convicted inherently dictated the trial

tactics and strategy adopted and pursued

by the Petitioner and his attorneys. As

the Alabama Supreme Court expressly

recognized in the Reed case, supra, and

the United States Supreme Court held in

the case of Beck v. State of Alabama,

supra, not only would ‘the offer of evidence

and jury instructions on 4 lesser-included

offense have been irrelevant and

impermissible at trial under that statute’;

but a defendant charged with capital

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murder, who actively sought to introduce

evidence of guilt of a lesser-included

offense, faced the risk, indeed the

realization, that if a capital jury found

the defendant guilty of any killing, that

jury would then be required by law to choose

between acquitting the defendant of every- |

thing, or else convicting the defendant of

capital murder, and ipso facto sentencing

that defendant to die by electrocution.

Certainly, had’ counsel for the Petitioner

been able to see into the future, and read

into the minds of the Justices who now sit on

the United States Supreme Court and Alabama

Supreme Court respectively, trial tactics

and strategies regarding whether or not ua

to put Petitioner on the stand to testify to ;

an alibi, and/or decisions regarding the scope

and emphasis on the cross-examination of key Bi

witnesses for the prosecution would have

. -l17-

been significantly affected. The crux

of the problem is essentially that the

Petitioner, by being bound by a new and

unforeseeable rule of law regarding the

impact. of his taking the stand and raising

the defense of alibi, has been deprived of

due process of law, and effective assistance

of counsel. The plain and unassailable

fact of the matter is that neither the

Petitioner nor his attorney purports to be

a fortune teller with the ability to

predict what standards and rules of law

may or may not evolve in the future.

Rather, Petitioner and his counsel undertook

to try the capital murder case under the

then existing applicable rules of law,

and really had no choice but to do so.

Clearly to now impose upon the Petitioner,

who was charged with capital murder under

Alabama's 1975 death penalty statute, a

new and unforeseeable rule of law, to-wit,

. PS chet eae post facto determination by the

Alabama Supreme Court that an alibi defense

would conclusively preclude any claim of a

prejudice the Petitioner suffered vis-a- |

via the preclusion clause in the statute, q

deprives the said Petitioner of due

process of law, effective assistance of i:

counsel and equal protection under the

law. ‘a

It has been held that in measuring

whether a defendant has been afforded a

effective assistance of counsel, “the test

in the criminal case is one of q

fundamental due process, and the remedy

for the failure to provide that is to

afford the defendant a new trial.2" Mylar

v. Wilkinson, 435 So. 4 1237, 1239 (Ala.

1983); see also Washington v. Strickland,

693 F. 24 1243, (11th Cir. 1982).

While the case at bar does not fit within

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.

the usual context of previous court opinions

regarding failure to receive effective

assistance of counsel, the issue is neverthe-

less clearly raised herein and impacts upon

the Petitioner's fundamental right to due [

_ | process and equal protection under the law.

It is a significant constitutional issue of

first impression, and involves compelling

public policy considerations sure to arise

in other cases to be decided by the court

regarding the unfairness of imposing, ex

post facto, a new and unforeseeable rule of

law upon a defendant and his counsel in a

capital murder case.

II. THE DECISION OF THE ALABAMA

" SUPREME COURT ON REHEARING IN THE CASE AT

BAR IS MISGUIDED AND CONTRARY TO THE

DECISION OF THE UNITED STATES SUPREME COURT

IN BECK V. STATE OF ALABAMA AND HOPPER V. |

EVANS. | ag

% A. The United States Supreme Court in

the landmark decision of Beck v. State

-20- [

of Alabama, 447 US 625, 100 S. Ct. 3382,

Ed. 2d 392 (1980) held:

"Alabama failure to afford

capital défendants the

protection provided by lesser-

included offense instructions

is unique in Aperican

criminal law.” ...

(T]he nearly universal

acceptance of the rule in

both state and federal courts

establishes the value to

the defendant of this

procedural safeguard. That

safeguard would seem to be

especially important in

a case such as this. For

when the evidence unquestion-

ably establishes that the

defendant is’ guilty of a

serious, violent offense-

but leaves some doubt with

res t to an

wo ustify convic

a capital

to give the jury the “third

tion’ o

esser- luded

Seem inevitably to_enhance the

r of an unwarranted conviction.

Such a risk cannot be tolerated

in a case in which the defendant's

Tite is at stake...

To insure that the death

penalty is indeed imposed on

the basis of ‘reason rather

than caprice or emotion’, we

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have invalidated procedural

rules that tended to diminish

the reliability of the sentencing

determination.+3 The same

censon tag wusk peptone

t nis re t

° t dete tion.

us, unava ty

of a lesser-included offense

instruction enhances the risk

of an unwarranted conviction,

Alabama is constitutionally

prohibited from withdrawing |

that option from the jury

in a capital case.+*" (Emphasis

added) (Citations omitted)

Id. at 65 L. Ed. 2d 401, 402,

403.

Thus, the Beck decision, supra, served

to strike down as unconstitutional a

provision of the Alabama statute on capital

murder, which statute, to-wit, Code of

Alabama (1975), §13-11-2, et seq., is the

same statute under which the instant

Petitioner, Phillip Wayne Tomlin, was tried,

convicted, and sentenced to die in the

electric chair.

The Supreme Court of Alabama ostensibly

relying upon this Court's decision in the

case Of Hopper v. Evans, 456 US 605, 102

%

Sp. Ct. 2049, 72 L. Ed. 2d 367 (1982),

has ruled that application of the Alabama

preclusion law whereby a jury was required

to decide guilt or innocence of a capital

crime without consideration of lesser-included

non-capital offenses was not prejudicial

to the Petitioner, Phillip Wayne Tomlin,

and that the said Petitioner was not

therefore entitled to a new trial. The

reliance of the Alabama Supreme Court on

Hopper v. Evans, supra, 3 ene

First, it should be noted that the State

of Alabama has heretofore conceded at all

stages of the appellate process that the

case at bar is clearly distinguishable from

the facts in Hopper v. Evans, supra. On

that unique and peculiar state of facts,

this Supreme Court concluded:

"It would be an extraordinary

perversion of the law to

say that intent to kill is

not established when a felon

engaged in an armed robbery,

admits to shooting his victim

in the back in the

circumstances shown here. The !

evidence not only supported 4

the claim that respondent

intended to kill the victim,

but aff rmativery negated any

claim that not intend

to kill the victim. An

instruction on the offense

of unintentional killing during

this robbery was therefore not

warranted.” (Emphasis added)

Id. at 72 L. Ed. 2d 374.

The court went on to admonish in a

footnote, however:

"In another case with different

facts, a defendant might

make a plausible claim that he

would have loyed different

trial tactics-for example, .

that he would have introduced 4

certain evidence or requested

certain jury instructions- a

ut for preclusion clause. a

The Petitioner, Phillip Wayne Tomlin,

would. respectively submit that the case

at bar is just the sort of case with different

facts which the United States Supreme Court

alluded to in the Hopper v. Evans, case, supra. a

The evidence of record in the case at a

bar does not ee or absolutely

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es, pee ee ee he |, ee ee BO oa a te a -. Gea

4 4 al ve ter »

negate the possiblity that the Petitioner,

Phillip Wayne Tomlin, never intended a double

homocide. Indeed, there was absolutely

no evidence that the Petitioner was the

trigger man or even present at the time

that the two victims were killed. The

co-defendant, John Ronald Daniels, might

have killed both victims, one of whom the

Petitioner never had any intent whatsoever

to kill. To prove that Phillip Wayne

Tomlin was guilty of capital murder, it

was the State of Alabama's burden to prove

intent" to deliberately kill two or more

human beings. Beck v. Alabama, 447 US 625-

628, n. 2 (1980); see also Ex Parte Raines

429 So. 2d 1111, 1112-13 (Ala. 1982).

Significantly, in the Beck case, supra,

; the United States Supreme Court made clear

; that a defendant need not rely solely on

; his own evidence in order to justify jury

instructions on a lesser-included offense,

piorie

but has a right, after all the evidence is

in, to invoke whatever holes or doubts

exist in the State's case to justify such

jury instructions. Beck v. State of Alabama,

447 US 625, 100 S. Ct. 2382, 65 L. Ed. 2d 392,

402-403 (1980).

Moreover, there was evidence that the

Petitioner was quite distraught over his

brother's death, who had been shot intl killed

by one of the victims, to-wit, Richard Brune,

and that the Petitioner, his deceased brother,

and the homocide victim Richard Brune, were

all involved in abuse of drugs and alcohol,

etc. (R. pp. 232, 238, 271-295, 785) (R.

pp. 827-830, 835, 846-848, 850 8-18) (R. pp.

921, 1027-1029) The Petitioner would submit

that the evidence of record from the first

trial would not preclude or affirmatively

negate the Petitioner on a new trial from

employing new trial tactics and strategy in

an effort to convince the jury, for example, '

2 ‘a _=

in tt ale

the Petitioner's mental state at the time

of the double homocide was sufficiently

poisoned by the drugs, alcohol and grief

over his brother's death such that the

requisite intent to commit a capital

homocide could not be found to exist. When_

the evidence of record is examined in light

of the fact that under the then existing

law of Alabama a capital murder defendant

had no option of pursuing evidence and/or

jury instructions of a lesser-included

offense, the prejudice is undeniable.

The preclusion clause in this case clearly

dictated the trial strategy and tactics

adopted by the petitioner and his attorney,

and its operation served to sowmrely

prejudice the Petitioner's right to a fair

trial; wherein a defendant charged with

capital murder can present a defense,

including evidence of guilt of a lesser-

included offense, without fear that if a

capital jury finds a defendant guilty of

defendant to death in the electric chair.

any killing, that jury will be required by

law to choose between acquitting the

defendant of everything or sentencing that

It is patently unfair for the Courts to now

impose a new and unforeseeable rule of law ;

upon the Petitioner, to-wit, the ex vost |

facto determination of the Alabama Supreme

Court that an alibi defense would conclusively _ —

preclude the defendant from invoking 5

or introducing evidence of, and obtaining :

jury instructions on, a lesser-included

offense in a new trial. It transgresses the 3

intent of the United States Supreme Court ;

which was enunciated in Beck v. State of

Alabama, supra and Hopper v. Evans, supra, gl

and effectively denies the Petitioner his 3

fundamental constitutional right to due -

process of law. S

The decision of the Alabama Supreme

*

tim

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y

Court in the case at bar is violative of

constitutional rights of the Petitioner

insofar as the decision fails to follow

the dictates of the United States Supreme

ey Se ee ee ef

Court which were expressed in Godfrey v.

Georgia, 446 US 420, 100 S. Ct. 1759,

64 L. Ed. 2d 398 (1980). Not only has the

jury been effectively eliminated from

considering aggravating and mitigating

circumstances prior to sentencing the

defendant, which was held to be constitution- }

ally mandated, in Beck v. State, 396 So. 2d

645, 660-662 (Ala. 1980), but the State of

Alabama otherwise failed to prove the alleged ;

aggravating circumstances beyond a reasonable a

doubt. (R. pp. 174, 175-179, 982-988, 1003-

1032)

CONCLUSION

WHEREFORE, the premises considered, the

. Petitioner, Phillip Wayne Tomlin, respectfully 4

moves this Court to grant his Petition for .

Writ of Certiorari to the Alabama Supreme Cour Fe

| eage |

WILLIAM } JACKSON, I

on:

rn, 8

OF COUNSEL:

HESS, ATCHISON & HORNE

301 St. Joseph Street

Post Office Box 1706

Mobile, Alabama 36633

Telephone: (205) 432-4546

CERTIFICATE OF SERVICE

I, Richard D. Horne, a member of the bar

of the U.S. Supreme Court and Attorney for

or Petitioner, do hereby certify that on

7th day of February and again on the

t%& day of March, 1984, I did serve the

requisite number of copies of the foregoing

to the Clerk of the Supreme Court and the

Attorney General for the State of Alabama,

Charles Graddick, by placing a copy of same

in the United States Mail, properly addressed

and first class postage prepaid.

APPENDIX

Opinion of the Alabama Supreme Court

on rehearing, which was rendered on

December 9, 1983; (Exhibit A)

Alabama Code, (1975) §13-ll-l, et seq.,

(repealed); (Exhibit B)

Alabama Code, (1975) §13-1-70,73,74.

(Exhibit C) |

United States Constitution, Articles

V, VI, VIII, XIV, Section 1. (Exhibit D)

THE STATE OF ALABAMA- ~JUDICIAL DEPARTMENT r.

THE SUPREME COURT OF ALABAMA :

OCTOBER TERM 1983-1984

Ex parte: Phillip Wayne Tomlin

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF CRIMINAL APPEALS

(Re: Phillip Wayne Tomlin

79-288 Vv.

State of Alabama)

ON APPLICATION FOR REHEARING

FAULKNER, JUSTICE

Phillip Wayne Tomlin was convicted under Alabama's

1975 death penalty statute of first degree mirder

wherein two or more people are intentionally killed by ;

on or a series of acts and of first degree murier done

for a pecuniary or other valuable consideration or

pursuant to a contract or for hire. Sections 13-11-2

(a) (10) and (7), Code of Alabama (1975) (repealed). ‘The

trial court held a sentencing hearing ard entered an

order setting out its findings as to aggravating and

mitigating circumstance and sentencing the defendant |

to death. On appeal the Court of Criminal Appeals

A-1

affirmed the defendant's conviction, but found the

trial court's sentencing order defective in several

aspects. It entered an order remanding the cause

with instructions to the trial court to amend its

sentencing order to comply with the Court of Criminal

Appeals’ decision.

While Tomlin's petition for writ of certiorari was

pending before this court, the United States Supreme

Court handed down Beck v. Alabama, 447 U.S. 625 (1980),

in which it found Alabama's 1975 death penalty statute

defective because the preclusion clause in the act

prohibited juries fram considering any lesser-included

offenses. Because we interpreted Beck v. Alabama to

require that all defendants theretofore convicted under

that statute be granted new trials, we entered an order

reversing Tomlin's conviction.

The State filed an application for rehearing in

which it asked us to reconsider our interpretation of

Beck v. Alabama. While the application for rehearing

was pening, the Sevens Court selessed its epinien

in Hopper v. Evans, 456 U.S. 605 (1962). Svans had

A-2

been convicted and sentenced to death after testifying :

that he intentionally shot the proprietor of a pawn-

shop during a robbery. Because Evans suggested no

plausible claim not contradicted by his own testimony

at trial which would entitle him to a jury instruction

on a lesser-included offense, the Court ruled that he

had not been prejudiced by the preclusion clause. It

concluded, therefore, that Evans was not entitled to

a new trial. Hopper, supra, 456 U.S. at 613-14. We

hereby withdraw our previous opinion in this case in

order to enter an order in accordance with Hopper ee

and its progeny. 3

A defendant convicted under §13-11-2 of the 1975

statute is entitled to a new trial because of the 4

preclusion clause in the statute if there was evidence ©

introduced at trial which would have warranted a jury :

instruction on a lesser-included offense or if the 3

defendant suggests any plausible claim not contradicted

by his own testimony which he might conceivably have

salts Uiichi would hee entities hhin-to a jury instruc

on a lesser-included offense. Cook v. State, 431 So. 2

A-3 %

PI, ne ee tet Ys ee eae ee ae ~ —_— nee =o, ) ae tl le a

: v

2d 1322, 1324, (Ala. 1983)

Tomlin testified that he was in Texas at the time

of the killings. We examined in Cook v. State, supra,

the effect of an alibi defense on the question of

whether a defendant convicted under the 1975 death

penalty staiute is entitled to a new trial because of

the preclusion clause. We concluded that when a

defendant testified that he was in a distant location

when the crime was committed, his own testimony

directly contradicted any evidence he might have

introduced to show that he was guilty of a lesser-

included offense. Cook, supra,at 1325.

Cook is clearly controlling here. The petitioner

argued that, but for the preclusion clause, he might

have introduced evidence that Daniels, who was allegedly

with Tomlin at the time in question, did the killing,

or that Tomlin intentionally killed only ome of the

victims, or that Iemlin was under the influence of

drugs at the time of the killings. All of the

claims suggested by the petitioner are, however, in

conflict with Tomlin's own testimony. Tomlin is not,

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therefore, entitled to a new trial based on the presence

of the preclusion clause in the statute.

Tomlin raised the following additional issues in

his petition for writ of certiorari:

(1) Whether counts one and three of the indictment

calle dolicntees

(2) Whether the trial court should have refused

to allow the State to call a witness omitted from a

list of potential witnesses supplied by the State;

(3) Whether the trial court should have granted

a motion to exclude as to count two of the indictment

which charged the defendant with murder for pecuniary

or other valuable consideration or pursuant to a

contract or for hire;

(4) Whether the jury charge was sufficient;

(5) Whether the verdict form was sufficient; 4

(6) Whether the trial court properly responded to .

qquetions fron the jury’ es to what would tuppen tnt

event of a hung jury. 4

A-5 a

I

SUFFICIENCY OF COUNTS ONE AND THREE

OF THE INDICIMENT

Tomlin did not file his demurrer to the indictment

until after the jury was empaneled. By appearino and

entering a plea at his arraignment, the petitioner

waived any irregularities in the indictment unless the

indictment was so defective that it left the accused

unaware of the nature and cause of the charges against

him. Canada v. State, 421 So. 2d 140, 145 (Ala. Crim.

App. 1982)

Qmitting the formal parts of the indictment, count

one charges that Tomlin:

"... did wmlawfully, and with malice

aforethought kill Richard Brume and

Cheryl Moore by, to-wit: on January

2, 1977, at a location on or near

Interstate 10 in Mobile County,

Alabama, was shot with a gun, (sic)

in violation of Act Number 213, Sectim

2, Sub-Section J (Act #213, §2(j), Acts

of Alabama, Regular Session, 1975,

against the peace and dignity of the

State of Alabama.”

Petitioner's contention that count one charged no

more than first degree murder of two persons is not

A-6

well taken. The capital murder statute does require

that the victim be killed by “one or a serices of acts,"

an allegation omitted from count one of the indictment. .

The omission did not, however, leave the defendant

unaware of the nature and cause of the charge against

him in light of the reference to the death penalty

statute by act number in each count of the indictment.

Count three alleged, in pertinent part, that

Tomlin:

",..-did unlawfully intentionally, and

with malice aforethought kill Richard

(Act #213, §2(j) and Act Number 213,

Section 6, Sub-Section H (Act #213,

§6(h), Acts of Alabama, Regular Session

1975, in that said killings were

especially heinous, atrocious or cruel..."

Count three was, if anything, overinclusive. We

disagree with petitioner's argument that the State

atrocious or cruel." The State introduced evidence

that Tomlin had planeed to kill Ricky Brure for over

A-7

‘athe

failed to prove that the murders were “especially heinous, —

nine months. He traveled from Texas to Mobile with a

“hit man" for the express purpose of carrying out his

plan to kill Brune. Tomlin and Daniels apparently

gained entry into the back seat of Brume’s car, and

then shot not only Brune but also his fifteen-year-

old campanion in the back with a shotgun and a pistol.

We are not inclined to rule as a matter of law that

the murders were not especially heinous, atrocious

or cruel.

II

FAILURE OF THE STATE TO DISCLOSE THE IDENTITY

OF A WITNESS PRIOR TO TRIAL

About nine months prior to the killings, two

officers from the Texas Department of Public Safety,

operating undercover talked with the petitioner at =

a night club in Houston, Texas, in comection with an

investigation of illegal drug trafficking. During

the conversation Tomlin allegedly stated that he

inténded to go to Alabama to "kill sameone." Tomlin

was subsequently prosecuted in Texas on a drug charge

but was not convicted. His case was nol-prossed after 4

The trial court in the instant case ordered the

4

F

State to submit to the defendant list of the witnesses

it intended to call at trial. The list included one :

of the two Texas police officers. At trial the State :

called both officers, who testified to their conversa- |

tion with Tomlin. Petitioner objected to the testimony

of the unlisted witness, Officer Hebison. On appeal

he argued that, had he known Hebison was going to |

testify, he would have acquired a transcript of the :

Texas proceedings in order to facilitate his cross- g

examination of Hebison. ,

We fail to see how inclusion of both officers' :

; need to obtain the Texas transcript than was afforded :

by the inclusion of one of their names. Both testified 4

to substantially the same facts. If, indeed, there -

; was any error, it was harmless. A.R.A.P. 45. A

| mm a

; WHETHER A MOTION TO EXCLUDE SHOULD HAVE 4

: BEEN GRANTED AS TO COUNT TWO %

3 A-9 a

P: =

:

a?y Faye 9

.

a

pecuniary or other valuable consideration or pursuant |

to a contract OF for hire, in violation of §13-11-2(a)

(7), Code of Alabama (1975) (repealed). The trial court .

submitted all three counts to the jury, which returned

a verdict of guilty "as charged in the indictment."

The jury, therefore, convicted Tomlin of every crime

included in the indictment, including murder pursuant

to a contract or for hire.

The Court of Criminal Appeals affirmed, based on

the evidence that Tomlin was accompanied by Daniels,

whom he introduced as a "hit man.” Even though Tomlin

did not himself act pursuant to a contract or for hire,

there was sufficient evidence to convict him because 3

under Alabama's accomplice statute all persons concerned

*

in the commission of the crime must be indicted, tried,

os

and punished as principals. Section 13-91, i

Code of Alabama, (1975) (repealed). E

The petitioner argued that the court's findings

in its sentencing order could not be reconciled with

the jury verdict. ‘The court's sentencing order states,

inter alia, that “the capital felony was not committed

for pecuniary gain” and thet “Mr. Tomlin was not an

A-10 :

—

accomplice... but was in fact a principal who was

present and assisted in the commission of the double

homicide."

The finding that Tomlin did not act for pecumiary

gain was not at odds with the theory that he hired

Daniels as his “hit man” and was, therefore, liable

as Daniels's accomplice. The court's finding that

Tomlin was not an accomplice but was present and

assisted in the killings is incongruous on its face.

If Tomlin assisted Daniels in the killings he was, by

definition, Daniels's accomplice. The finding in

question was made with reference to §13-11-7(4), Code

of Alabama (1975) (repealed), which provides that it

is a mitigating circumstance to be considered in

sentencing the defendant if the defendant was an

accomplice whose participation was relatively minor.

The court was apparently attempting to state that

Tomlin was not an accomplice whose participation was

relatively minor, but simply amitted that crucial

language. At any rate, the issue is moot. The Court

of Criminal Appeals ruled that the finding in qestion

A-11

was"defective" and ordered that the cause be remanded

for a correction of the sentencing order. Qbjectios

based on the content of the sentencing order should be

raised after remandment.

IV

SUFFICIENCY OF THE JURY CHARGES

On appeal petitioner argued, for the first time, |

that the elements of premeditation, unlawfulness, and “

malice aforethought should have been included in the )

charge. Failure to include these elements, he argued, f

constituted plain error which affected his substantial

rights. A.R.A.P. 39(k). 4

We disagree. ‘he oral charge mist be judged within

the context of the facts in dispute. VanAntwerp v. r

State, 358 So. 2d 782, 786 (Ala. Crim. App.), cert. '

denied, 358 So. 24 791 (Ala. 1978) ‘There was no dispute

as to whether the killings were premeditated, unlawful,

and done with malice aforethought. Tomlin either

carried out the brutal, execution-style killings after

months of planning or he wes in Texas at the time of

the killings and had no knowledge of them. There was

A-12

or provocation.

SUFFICIENCY OF THE VERDICT FORM

atthoogh he 414 nob tedett oi the. ventiet fore

which was offered to the jury, petitioner now argues

that there was a fatal variance between the indictment

and Abe arp eurtlet, sich cetih

"We, the jury, find the defendant

guilty of murder as charged in the

indictment and fix the punishment

at death."

The same argument with regard to a verdict form

which was virtually identical to the ome in the case

at bar was rejected in Johnson v. State, 399 So. 2d

859, 865 (Ala. Crim. App.), affirmed in part, reversed

in part on other grounds, 399 So. 2d 873 (Ala. 1979)

That case is controlling.

3 vI

THE COURT’S INSTRUCTIONS REGARDING A MISTRIAL

After the jurors had deliberated some four hours,

they returned with several questions, the second of

which was: :

"What happens if there is a hung jury?” ;

The Court replied: ;

"Well, I'm going to answer your first

question

charge

that you heard and then it would be

submitted to that jury. Okay?"

;

;

|

Although he did not object at trial, the petitioner

argued on appeal that it was plain error for the court :

not to instruct the jury of the possibility that Tomlin

could have been reindicted and tried for non-capital

murder.

a It is true that the option mentioned by the

% petitioner would have been open to the State in the

‘ event of a mistrial. For that mtter, the State could

Looking at the instruction from Temlin's vantage 7

point when the question was asked, an instruction a

which fully set out all alternatives open to the

A-14

Pa Se ae) OR 1 eS ewe BE a ERY | Se

State, including the State's option to nol-pros the

case, would have been as likely to harm as to benefit

the defendant. Petitioner cannot, after waiving his

objection at trial, bring the matter up on appeal.

The decision of the Court of Criminal Appeals is

hereby affirmed. ;

APPLICATION GRANTED; OPINION OF AUGUST 28, 1981 :

WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED

Torbert, C.J., Maddox, Jones, Shores, Embry,

Beatty and

Adams, JJ., concur.

Almon, J., not sitting.

ee. , i {Les OE ee Se Ruy al ee ;

i ; . . eee ins . .

§13-11-1. Limitation on imposition of death

penalty or life sentence without

parole.

Except in cases enumerated and described y

in section 13-11-2, neither a court nor a jury

shall fix the punishment for the commission .

of treason, felony or other offenses at

death, and the death penalty or a life J

sentence without parole shall be fixed as f

punishment only in the cases and in the

manner herein enumerated and described in |

section 13-ll-2. In all cases where no

aggravated circumstances enumerated in

section 13-11-2 are expressly averred in the

indictment, the trial shall proceed as now

provided by law, except that the death

penalty or life imprisonment vithousparebe

shall not be given, and the indictment shall

include all lesser offenses. {Acts 1975,

No. 213, §1l.)

§13-11-2. Aggravated offenses for which death

penalty to be imposed; felony- '

murder doctrine not to be used |

to supply intent; discharge of ;

defendant upon aggre of not |

n

guilty; mistrials; reindictment :

after mistrial.

(a) If the jury finds the defendant

guilty, it shall fix the punishment at death |

when the defendant is charged by indictment

with any of the following offenses and with .

aggravation, which must also be averred in

the indictment, and which offenses so charged

with said aggravation shall not include any

lesser offenses:

(1) Kidnapping for ransom or attempts

thereof, when the victim is intentionally

killed by the defendant;

(2) Robbery or attempts thereof when 4

the victim is intentionally killed by the

defendant; me

(3) Rape when the victim is intentionally

killed by the defendant; carnal knowledge of a

girl under 12 years of age, or abuse of such ov

B-2 y

— a...

girl in an attempt to have carnal knowledge

when the victim is intentionally killed by the

defendant;

(4) Nighttime burglary of an occupied

dwelling when any of the occupants is

intentionally killed by the defendant;

— oa oe ie mm aks

(5S) The murder of any police officer,

sheriff, deputy, state trooper or peace officer

of any kind, or prison or jail guard while such

prison or jail guard is on duty or because of

s -

2.5.2. a So

some official or job-related act or performance —

of such officer or guard; ’

(6) Any murder committed while the

defendant is under sentence of life

imprisonment;

(7) Murder in the first degree when “

the killing was done for a pecuniary or other -

valuable consideration or pursuant to a ;

contract or for hire;

(8) Indecent molestation of, or an

attempt to indecently molest, a child oe

B-3 ~

under the age of 16 years, when the child victim

’

is intentionally killed by the defendant;

(9) Willful setting off or exploding

dynamite or other explosive under circumstances

now punishable by section 13-2-60 or 13-2-@1,

when a person is intentionally killed by the

defendant because of said explosion;

(10) Murder in the first degree wherein

two or more human beings are intentionally

killed by the defendant by one or a series

of acts;

(11) Murder in the first degree where

the victim is a public official or public

figure and the murder stems from or is caused

by or related to his official position, acts

or capacity;

while the defendant is engaged or participating

in the act of unlawfully assuming control of

any aircraft by use of threats or force with

intent to obtain any valuable consideration

B-4 |

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(12) Murder in the first degree committed >

.

for the release of said aircraft or any passenges

or crewman thereon, or to direct the route ‘

or movement of said aircraft, or otherwise |

exert control over said aircraft;

(13) Any murder committed by a defendant ,

who has been convicted of murder in the first

degree or second degree in the 20 years

preceding the crime; or

(14) Murder when perpetrated against

any witness subpoenaed to testify at any

preliminary hearing, trial or grand jury

proceeding against the defendant who kills or

procures the killing of witness, or when ‘

perpetrated against any human being while

intending to kill such witness. |

(b) Evidenge of intent under this section |

shall not be supplied by the felony-murder

doctrine. | | ¢

(c) In such cases, if the jury finds the —

defendant not guilty, the defendant must be

discharged. The court may enter a judgment

of mistrial upon failure of the jury to agree

on a verdict of guilty or not guilty or on the

fixing of the penalty of death. After entry

of a judgment of mistrial, the defendant may

be tried again for the aggravated offense, or

he may be reindicted for an offense wherein

the indictment does not allege an aggravated

circumstance. If the defendant is reindicted

for an offense wherein the indictment does not

allege an aggravated circumstance, the

punishment upon conviction shall be as

heretofore or hereafter provided by law; however,

the punishment shall not be death or life

imprisonment without parole. (Acts 1975,

No. 213, §2.)

§13-11-3. Hearing as to imposition of death

penalty or life sentence without

parole after conviction;

admissibility of evidence, right

of state and defendants to

present arguments.

If the jury finds the defendant guilty of

one of the aggravated offenses listed in Pe

section 13-11-2 and fixes the punishment at =

B-6 | a

PA,

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oe

death, the court shall thereupon hold a hearing _

to aid the.court to determine whether or not .

the court will sentence the defendant to death

or to life imprisonment without parole. In 3

the hearing, evidence may be presented as to any

matter that the court deems relevant to sentence ©

and shall include any matters relating to any |

of the aggravating or mitigating circumstances

enumerated in sections 13-11-6 and 13-11-7.

Any such evidence which the court deems to have ,

probative value may be received, regardless of |

its admissibility under the exclusionary rules

of evidence, provided that the defendant is

accorded a fair opportunity to rebut any hearsay —

statements; provided further, that this section

ar

shall not be construed to authorize the 4

introduction of any evidence secured in 4

violation of the Constitution of the United

States or the State of Alabama. The state

the defendant, or his counsel, shall be

permitted to present argument for or against ig

oi a

the sentence of death. (Acts 1975, No. 213, §3.

Ba

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§13-11-4. Determination of sentence by court;

court not bound by punishment fixed

by jury.

Notwithstanding the fixing of the punish-

ment at death by the jury, the court, after

weighing the aggravating and mitigating

circumstances, may refuse to accept the death

penalty as fixed by the jury and sentence the

defendant to life imprisonment without parole,

which shall be served without parole; or the 4

court, after weighing the aggravating and

mitigating circumstances, and the fixing of

the punishment at death by the jury, may

a

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errr Se rs

les. a Pee *

accordingly sentence the defendant to death.

Es

J If the court imposes a sentence of death, st

b “ag

7 findings of fact from the trial and the bs

; sentence hearing, which shall at least include ¥

oo. Ss

a

the following: aa

(1) One or more of the aggravating =

circumstances enumerated in section 13~11-6,

which it finds exists in the case and which .

it finds sufficient to support the sentence

of death; and

(2) Any of the mitigating circumstances

enumerated in section 13-11-7 which it finds

insufficient to outweigh the aggravating

circumstances. (Acts 1975, No. 213, §4.)

§13-11-5. Conviction and sentence of death

subject to automatic review.

The judgment of conviction and sentence of

death shall be subject to automatic review as i

now required by law. (Acts 1975, No. 213, §5.) :

§13-11-6. Aggravating circumstances.

Aggravating circumstances shall be the :

following: :

(1) The capital felony was committed :

by a person under sentence of imprisonment;

(2) The defendant was previously convic

of another capital felony or a felony

involving the use or threat of violence to

the person;

(3) The defendant knowingly created a

great risk of death ‘ many persons;

(4) The capital felony was committed

B-9 3 ?

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— + il

while the defendant was engaged or was an

accomplice in the commission of, or an attempt

to commit, or flight after committing, or

attempting to commit,

rape, robbery, burglary

or kidnapping for ransom;

(5) The capital

felony was committed

for the purpose of avoiding or preventing a

lawful arrest or effecting an escape from

custody;

(6) The capital

for pecuniary gain;

(7) The capital

disrupt or hinder the

governmental function

laws; or

(8) The capital

heinous, atrocious or

213, -§6).

§13-11-7. Mitigating

felony was committed

felony was committed to

lawful exercise of any

or the enforcement of

felony was especially 2g

cruel. (Acts 1975, No.

circumstances.

Mitigating circumstances shall be the

following:

(1) The defendant has no significant

de =i

history of prior criminal activity;

x

ses

-

A Sine, abe One Da

(2) The oapital felony was committed

while the defendant was under the influence

of extreme mental or emotional disturbance;

(3}. The victim was a participant in the

An = tent ee

defendant's conduct or consented to the act;

(4) The defendant was an accomplice in e

the capital felony committed by another person

and his participation was relatively minor; #

(5) The defendant acted under extreme F

duress or under the substantial domination of —

another person;

{ (6) The capacity of the defendant to

appreciate the criminality of his conduct “2

or to conform his conduct to the requirements

| of law was substantially impaired; and &

: (7) The age of the defendant at the time

of the crime. (Acts 1975, No. 213, §7)

By

§13-11-8. Appointment of experienced counsel

for indigent defendants.

q B-11

Each person indicted for an offense punish-

able under the provision of this chapter who

is not able to afford legal counsel must be

provided with court appointed counsel having

no less than five years' prior experience in

the active practice of criminal law. (Acts

q 1975, No. 213, §8)

4 §13-11-9. Effective date.

This chapter shall become effective on

March 7, 1976. (Acts 1975, No.

213, § 10).

§13-1-70. Degrees of murder.

Every homicide perpetrated by poison, lying

in wait or any other kind of wilful, deliberate,

malicious and premeditated killing; or

committed in the perpetration of, or the attempt

to perpetrate, any arson, rape, robbery or

burglary, or death of any human being other

than him who is killed; or perpetrated by any

act greatly dangerous to the lives of others *

and evidencing a depraved mind regardless of

human life, although without any preconceived

purpose to deprive any particular person of

life, is murder in the first degree; and every

other homicide committed under such

circumstances as would have constituted

murder at common law is murder in the second 5

degree. (Code 1852, §111; Code 1867, §3653;

Code 1876, §4295; Code 1886, §3725; Code

C-1

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+ ? » aie a _ - e "te (wee a aw” ual -;

i, “Stee Pe VES. fe Sie * aS ) SA Pe) Oe ae eee’ ws ilar 8 -

_ eS * Pied f K 2 . whe a

1896, §4854; Code 1907, §7084, Code 1923,

§4454; Code 1940, T. 14, 314.)

§13-1-73. Jury to find degree.

When the jury finds the defendant guilty

under an indictment for murder, they must

ascertain by their verdict whether it is

murder in the first or second degree; but if

the defendant on arraignment confesses his

guilt, the court must proceed to determine

the degree of the crime, by the verdict of a

jury, upon an examination of the testimony,

and pass sentence accordingly. (Code 1852,

§115)

§13-1-74. Punishment-Generally.

Any person who is qi))t, of murder in the

first degree shall, on conviction, suffer

imprisonment in the penitentiary for life,

unless otherwise specified by law; and any

person who is guilty of murder in the second

degree shall, on conviction, be imprisoned

in the penitentiary for not less than 10

years, at the discretion of the jury. (Code

1852, $112; Code 1867, §3654; Code 1876,

: $4296; Code 1886, $3729; Code 1896, $4858;

Code 1907, §7088; Code 1923, $4458; Code.

318.)

14,

1940, T.

—

~

_

3

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—=—— se eS

UNITED STATES CONSTITUTION

ARTICLE [V]

No person shall be held to answer for a

capital, or otherwise infamous crime, unless

on a presentment or indictment of a Grand

Jury, except in cases arising in the land or

naval forces, or in the Militia, when in

actual service in time of War or public

danger; nor shall any person be subject for

the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or

property, without due process of law; nor

shall private property be taken for public use

without just compensation.

ARTICLE [VI]

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public

trial, by an impartial jury of the State and

district wherein the crime shall have been

D-1

a i

committed, which district shall have been -

previously ascertained by law, and to be

informed of the nature and cause of the

accusation; to be confronted with the

witnesses against him; to have compulsory

process for obtaining witnesses in his favor,

and to have the assistance of counsel for his

defense. |

ARTICLE [VIII]

q

Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and

unusual punishments inflicted. J

ARTICLE XIV i

SECTION 1. All persons born or naturalized ~

in the United States, and subject to the

jurisdiction thereof, are citizens of the

United States and of the State wherein they

reside. No State shall make or enforce

any law which shall abridge the privileges

or immunities of citizens of the United |

States; nor shall any State deprive any person

ef.

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— — —— cer Ul

or) .

.

of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the

laws.

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