Petition — DOBARD v. ALABAMA (No. 83-5695)

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IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983

0. 983-5695

PERCY LEO DOBARD,

PETITIONER,

Vs.

STATE OF ALABAMA,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF

ALABAMA

*RALPH I. KNOMLES, JR.

Drake, Knowles & Pierce

Post Office Box 86

Tuscaloosa, Alabama 35402

(205) 759-1234

BARRY E. FRIEDMAN

University of Alabama

School of Law

Post Office Box 1435

University, Alabama 35486

(205) 348-5930

ATTORNEYS FOR PETITIONER

*Counsel of Record

] Whether ehe Alabama ‘oOurts have violated the

€ the Eighth Amendment if sentencing the Petitioner

to death without ronsiderings all f the "riteria for

proportionality review requirec © Solem . Helm, __—sOiU S ,

103 $.Ct. 3001 (1983).

. a. Whether this Court's mandate in Witherspoon \.-

391 U.S. 510, 88 S$.Ct. 177¢ (1968) was violated by

removal for cause of a juror wh eauivocally responded concerning

her ability to assess a death penalty.

b. Whether this -ourt should promulgate uniform

standards for Witherspoor voir dire t stem the tide of

es ee

Witherspoon litigation.

= Whether the Petitioner's Fourteenth Amendment due

process rights were vio.atec © the trial court’s refusal tc

ascertair whether e he sequesterec petit Tur was improperly

influenced bt viewing accounts ‘, and commentary about, tne

attempted assassinatior f President Ronaic Reagan.

“ONTENTS

? ’

—

sions T

re)

ve)

| ' ” ¥ a)

TARPLE OF AUTHORITIES

CASES: Page

Adams v. Texas, 448 U.S. 38, 100 S.Ct.

seTT TTSery * * * * o * * * * * * * . * * * * re Rva 19

Barefoot v. Estelle, 103 S$.Ct. 3383,

ae eee «3.

. . . . . . . . . . . . . . . . . . 14

Boulder v. Holman, 394 U.S. 478, 89 S.Ct.

tise (1969).

ee 8 0S £1 61*. Sw Cle, Se eee se 14

Brickley v. State, 286 Ala. 546, 243 So.2d

Ste TS oD) * . * * . . . . * * * * * . * * . * 24, 25

Burns v. Estelle, 592 F.24 1297 (Sth Cir. 1979)

adherec to 626 F.2d 396 (Sth Cir. 1980)

fen banc) oS SOS SS eS SS ee ee eee 17

Coker v. Georgia, 433 U.S. $84, 97 S.Ct.

Deel TSF Dat alae ee ee el ee ae ee ll

Darden v. Wainwriaht, 699 F.2d 103) (llth

Cir. 1983), Mandate withheld pendinc reh.

en banc, id. at 1963. . . « « © © © © © «© © « 1B, 19, 20

Davis v. Georgia, 429 U.S. 122, 97 S.Ct.

Dpe GAeVee wos. 0+ 6 \o 2° so. Sele a6 6) Se ae 14, 18

Dobard v. State, 435 So.2d 3338 (1982) ..... 8, 10, 12

Enmund v. Florida, 458 U.S. s Bee oe.

é ee 8 Oh in ae ay ae sae ek ee ee fe 10, 11

Ex Parte Dobard, 435 So.2d 1351

Sees BUCS) 6 «- ms »'m “@ & 6.16 Bu Oe BOs tee 2 eee ee

Granviel v. Estelle, 655 F.2d 673 (Sth Cir.

1981), cert. denied, 455 U.S. 1003, 102

Fe lta (13582) . . . . . . . . . . . . . . . 18, 19

Grecc v. ee eae 428 U.S. 1301, 96 S.Ct.

is . . . . . . . . . . . . . . . . . . li, 12

Rance v. Zant, 696 F.24 940 (llth Cir. 1983) ... 17, 19

Harris v. Pulley, 692 F.2d 1189 (9th Cir. 1982),

cert. grantec, 103 S.Ct. 1425 (1983). ..... p

Irvin v. Dowd, 366 U.S. 717, 81 S.Ct.

Té35 TI Set) . . * . . . * . >. * . . . . > . . . 22. 23

Leith v. State, 20€ Ala. 439, 90 So. 687 (1921). . 21

Liddell v. State, 287 Ala. 299, 251 So.2d

™ 601 CLO71) .

. * * * * * * * .* * * * * * . * * * 14

Martin v. Maggio, 711 F.2€ 1273, 1285-86

TSth Cir. eLET e 6606 leile 6 3-8 6 -eo.8s «6 ere 19

Maxwell v. Bishop, 398 U.S. 262, 90 §.Ct.

* *. . .* * * * . * . * * . * * * . . 13

iii

TABLE OF AUTHORITIES--Cont inued

McCoraquodale v. Balkcom, 705 F.2d 1853 (llth Cir.

a a 6.6 S 6. 6 Se 6 6-6 howe © ole. @ 6 * 19

Oliver v. State, 232 Ala. $, 166 So. e135

(1936) 7 24

. . . . . . . . . . . . . . . . . .

Paz v. United States 462 F.24 740 (Sth

Cir. 1972) De eae ae ia tae Rak ee ae ee ae ea 23

Proffitt v. Florida, 428 U.S. 242 96 $.Ct.

.. £2 Pree a ae a oe eee ee Ly Aa

Ray v. State, 257 Ala. 418, $9 So.2d 582

1952 ae ae ee 6b eee ee Se Bee 21

Remmer v. United States, 347 U.S. 227, 74

Das wee. Cheees. .« «ss : ie ahs seek eed mag- mater > a 23:23

Seekers v. State, 35 Ala. App. 40, 44 So.2¢d

628, cert. Genied, 253 Ala. 420, 44 So.2d

633 «(19%5) She eee wt See te lene ee 24-28

> DhRid?; ‘ c re ad

Smit VV. PHRIISEsS, § swe a20te S04 Watts

- - ao is

940 (198. ae lee Sl or > er ae ee eo: me

cA ao . He >= ¢ o~ ,

s gid ; , » .

hela OL LED 9-13

; I | . oe ae oe “on oe ae Ls l

: eer , : tee P

Stvles v. State, 29 Bs°°423. , Sceee-2en

Sry 56.98

iS eats hoe apremp—ntt gi i, ae a ae ee ee d d

United States v. Bagqnariv.:, 665 F.2d 87?

TGs Cir vYorrt 23

E>) L ; Sa er oi ne tor Or te a ee ee 3

on . —S .

United States : ascqcez, 597 F.2d 192, 19

(Sth Cir. 19°79) 23

| ; “ae te Oe ee ae ea oe ee a ee 2

sc . c cir ro"

Le, 392). U8. 10, 88

7 ‘nr , , : |

. . . . . . Le . . 2 ‘ i 14, 16-2)

2s a . .-

17 n

. . . . . . . . . . . . . . . ’ «*

So.2€ 982 (Ala. 1978). ... .- 24

CONSTITUTIONS:

Dil ees, GENE. VEe a a oa el ae 8 6 SM eee ee ee ee

a aa Ses: Ds TES “en 6 16! oe a ee eee eee 9

TARLE OF AUTHORITIES--Continued

STATUTES:

> hs

‘

IN THRE

SUPREME COURT OF THF UNITED STATES

OCTOBER TERM, 1982

NO. A-

PERCY LEO DOBARD,

PETITIONER,

STATE OF ALARAM,

RESPONDENT.

PINIONS BELOW

The opinion of the Alabama Supreme Court, Ex parte Dobard,

is reported at 435 So.2d 1351 (Ala. 1983), and is set forth in

Appendix A. The opinion of the Alabama Court of Cririnal Appeals

is reported at 435 So.2¢d 1383 (Ala. Cr. App. 1982) and is set

forth in Appendix B.

The judament of the Alabama Supreme Court was entered on

July 8, 1983 and rehearing was denied on August 5, 1983. Justice

Powell extended the time within which to file this petition for a

writ of certiorari to and including November 3, 1983. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1257(3).

STATUTORY AND

CONSTITUTICNAL

PROVISIONS INVOLVED

the af

f several ore

the Eighth and

out, in pert

ie of Alabama

e Court

r ovisions are ser

Section 13JA-5-* a ay.

the rn. enience é +

firmance of his sentence of

the United States

Amendments. These

STATEMENT CF THE CASE

On March 30, 1981, the trial of Percy Leo Dobard, charged

with first-cecree murder, began in the Circuit Court of Marenco

County, Alabera. The jury was sequestered. On that same day

John Hinckley, Jr. attempted tc assassinate the Presidert ef the

United States, Fonald Reacan. Despite the sequestration order,

the jury was permitted to watch television accounts of the

attemptec assassination, alonc with the attendant editorial-

ization. The trial court at the behest of the defense counsel

ascertained that fact but did not determine the nature of what

Was seen or heard. Neither did it ascertain whether any jurors

were prejuc.icecd by the media coveracc. (R. 774). On March 31,

ury found petitioner guilty of murder. On April ist

the same jury fixed his punishment at death. The trial judge

affirmed the death penalty and sentenced Dobard tc die by

e.ectrocution in Alabama's electric chair.

The facts leading up to Dobard's arrest and conviction are

as follows: tn June 21, 1980, at approximately $:30 a.m.,

O’Jim'’s Restaurant near Eutaw, labama, was robbed by a young

black couple from New Orleans, Jearette Kennecy and Percy Lec

bobard,. Shortly thereafter, wayne Sudduth, a Livingston

University security guard, notified police headquarters that he

had stopped an automobile similar in appearance to the vehicle

Gescribed in the radio report of the O'Jim's robbery. Sudduth,

apparentiy not fearful, approached the car ard asked tc see

Doberd's driver's license. He never unholstered his gun. When

Sudduth subsequently failed to respond to a radio call, Officer

Raymond Byrne of the Livingston police force went to Sudduth's

last reperted location te investigate. There, Byrne found

Sudduth lying dead in the road. Sudduth had suffered two direct

NN NS ND ee ee ee

gunshot wounds. The automobile reportedciy stoppec by Sudduth

later was found some miles away, where it had left the road and

Kennedy were arrested by police after a pickup

of contre] at a police roadblock,

Several witnesses testified they saw Dobccc,

the roadblock ahead of Dobard anc KFennecy the occupants yelied

tc inform him that “the girl had a gur” (R. 404). Both Dobard

and Kennedy were arrested without incident and charged with the

murder of Wayne Suc th.

The onl witness t testi? at trial that ULobarc shot

Succuth was Jeanette Kenned Kennedy's testimony sealec a plea

agreement in which she receive 2c ea in prison for first

Gecree murder provided she testifise ainst Dobar in accoraance

> |

“Dobard and Kennedy stole the pickup truck after their car

was driven off the road and become mired in the field.

—

until she so testified.

with a previously given statement. The barcain was not final |

Kennecy*s testimory was neither consistert ner coherent.

The gist of her story was thet after Sucduth approached the car

askec Dobard for a @river's license, Dobard reached around,

ostensib!y fcr his wallet, and came up with the pistol, which he

“To t+ -- excerr- ‘ ~ > ‘ mro-*Fr a mor ons hearin

r foll ; pr ial 4 h ing

elaborate porn the plea acreement

MF. REIC ? ight; the next motion is a motion tc

Gisclose impeechrent information. The motion would

apply ¢t amy witnesses the State intends to use, but in

particular we are askinoe the State to furnish this

information abcout Jeanette Kennedy.

THE COUFT: I° 11 tell you what I heard the State say: I

hearc the State say that if she testified truthfully at

- ,

any trisel of Percy L. Dobard, they would recommend that

the sentence be twenty years in the penitentiary; is

that correct?

MR. WATKINS: That's correct.

THE COURT: The condition upon her truthful testimony as

given in a statement to them that is reduced tc

writing; if she testifies at the trial substantially to

the truth and it is substantial to that statement.

MR. REID: All right; has she been sentenced yet?

THE COURT: She has not beer sentenced anywhere.

MR. REID: She has not been sentenced in any case.

he case as per a written transcribed

THE COURT: Sentencing is a condition upon her testifying

statement that she has made (R. 196-97).

fired three times at Sudduth.? At one point Kennedy testified

Dobard got out of the car; at ancther she stated he simply opened

the door and put a foot cutside. This seemingly minor point

takes cn great significance because bullet trajectories are the

best evidence of who actually shot Sudcéuth. See the description

of the crime scene, infra.

The defense's theory cf the case was that Kennedy was the

triecgerpersor.. This theory was consistent on its face with the

confusing physical evidence of the crime scene. Indeed, the

angles of the first two bullets as they entered Sudduth's body

and the position of the third bullet that entered the door post

make it more likely thar not that Kennedy killed Sudduth. It was

also consistent with the testimony cf the owner of the stolen

pickup truck, see n. 1 supra, that Kennedy screamed repeatedly to

Dobarc to °kill him, kill hir® (the pickup owner]. Because

reconstruction of the crime scene was sc Cifficult, and so

Crucial, defense counsel soucht funds fror the court ec that hie

indigent client could employ an expert. The court entered an

order allowinc him to spend up to $1,000 cf the $1,00U maximum

attorney fee for representing an indicent defendant. In short,

‘ The Stete called ro less

the court awarded nothing for experts.

than four (4) state-paid experts, including a coroner, a forensic

pathologist and a firearms expert, to bolster their case acainst

Dobard. One of those experts describec his euployer as “the

scientific arm of the police community” (R. 549).

3awo shells in fact struck Sudduth. One was fired through

the decor post, and later was found embedded in the rear firewall

of the car. Apparently schrapnel from that bullet grazed

Sudduth's leg.

4t suggest that appointed defense counsel David Reid should

have used this token fee for experts would be callous and absurd.

Reid undoubtedly lost thousands of dollars in addition to

angerinc clients in his defense of Dobard.

Prior to trial the jury was voir dired concerning death

scruples. Two jurors were excused by the court for cause.

Defense counsel objected to the dismissal of both jurors, on the

grounds that neither met the standards imposed by Witherspoon v.

Illinois, 391 U.S. 510 (1968), and that to remove jurors opposec

to the death penalty deprived the defendant of a fair trial by a

jury composed of a representative cross-section of the community

(R. 313).

The jury convicted Dobard, and a sentencing hearing was held

at which the following facts were adduced:

Dobard, a poor ‘black from New Orleans’ ghettc, was quarter-

back of his high school football team, anc a leading student. As

a youth he showed much promise. He then was drafted anc served

with the United States Army in West Germany. His army medical

records indicate that at some point after he went abroad Dobard

became addicted to heroin and cocaine. Despite his addiction to

drucs, Dobard had ne significant history of criminal activity.

Although Dobard attempted to rid himself of the addiction several

times upon his return, he generally was unsuccessful. Jeanette

Kennedy, an eichteen year old drug addict, had one child by Percy

Dobard and was preqnant with another at the time of Officer

Sudduth's death. She also apparently was a leading supporter of

bobard'’s continuing drug use, several times removing him from

Grug rehabilitation programs. Shortly after Kennedy checkec

Dobard out of a crug rehabilitation program for the last time,

they began their tragic journey to Alabama.

The jury sentenced Dobard to death. At the mandatory

mitigation hearing the trial judge affirmed the sentence, finding

that two acgcravating circumstances” outweighed the one mitigating

circumstance: Dobard had no history of prior criminal activity.

two statutory aggravating circumstances were fourd by the

court: (1) Dobard was engaged in flight after committine a

robbery, and (2) a capital feiony was committed for the purpose

of avoiding or preventing a lawful arrest (R. 813).

Dobard's motion for a new trial was perfunctorily denied,

and his conviction was a’firmed by the Alabama Court of Criminal

Appeals. Dobard v. State, 435 Sco.2d 1338 (1982). Following an

adverse judgement, without argument, by the Alabara Supreme

Court, Ex parte Dobarc, 435 So.2d 1351 (Ala. 1983) and denial of

rehearing, the Dobard execution was set for September 23, 1963.

Dobard's sentence was subject tc appellate proportionality

review. In purporting to give the proportionality review under

the Eighth Amencment, Alabama law, anc in the face of a challence

by the petitioner, neither appellate court consider <1 sentences

giver in ocher states for similiar crines by similar people.

Dobarc v. State, supra, 435 So.2d 1345; Ex Parte Dobard, supra,

435 So.2d at 1358.

Or. September 16, 1983 Justice Powell granted Dobard's motion

for a stay of execution, pending filing of this petition for a

writ of certiorari. Further facts are supplied where necessary

to development of the arcurent.

REASONS FOR GRANTING THE WRIT

A. Irtroduction

This is a death sentence case. The death sentence of

Percy Leo Dobarc was imposed under facts which indicate a strong

likelihood that he was not om triccerman” in the killing cf

officer Sudduth and that he may §ct have "Geliberately”® murderec

or participatec in the murder of anyone. Sumerous factors notec

in the Statement of the Case generate grave concern about

the overall fairness of the trial anc sentencing of Dobard.

Because of the death penalty imposed under those circumstances

and because of the reasons stated below, there are “special and

important reasons” to grant the writ under Rule 19, Supreme Court

Fules.

1. The Eighth Amencment proportionality analysis of the

state courts in this case did not comply with this Court's

applicable decisicn in Solem v. tielm, U.S. , 103 S.Ct.

3001 (1983), by not considering punishments provided in other

states of this country for similar crimes committed by similar

people. Infra, pp. 8-11.

2. The excusail for cause cf a juror was not in accore with

Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 3770 (1968). The

analysis used in allowing the excusal for cause was in confiict

with the decisions of federal courts of appeals, including those

of the Eleventh Circuit Court of Appeals. Moreover, this Court

needs to end constant Witherspoon litigation around the country

by reasserting the mandate of Witherspoon and requiring a uniform

and clear standard for Witherspoon voir dire. Intra, pp. 11-19.

3. The state appellate decisions in this case are in

conflict with the prior decisions of this Court anc the federal

courts of appeals in their analysis ef whether the t:ial court

erred under the due process clause of the Fourteenth Amendment

when it did not ascertain what the sequestered jurors saw on

television concerning the attempted assassination of President

Reacan and whether any juror was affected by what was seen.

Infra, pp. 19-26.

I. The Petitioner Was Sentenced To Death In Violation Of The

Eight‘ Amendment Because Of The Failure Of The Alabama Courts To

Consider Required Objective Stancarcs In Their Proportionality

Review Of His Sentence. .

In Solem v. Helm, U.S. » 2403 S.CO. 2604 tases... eae

Court for the first tire explicitly established three objective

criteria which ust be utilized in a court's proportionality

analysis under the Eighth Amendment.® In this case the thire

Solem criterion, to-wit, "the sentences imposec for commission of

the same crime in other jurisdictions,” was not consiccred by

either the trial ccurt, the Alabama Court of Criminal Appeals cr

the Supreme Court of Alabama, in proportionality reviews of Percy

Leo Dobard's death sertence ik. 174, 176); Debard v. State,

supra, 435 So.zc at 1345; Ex Parte Dobarc, supra, 435 Sc.zc at

1356. Consecuently, the case must be reversed anc remanded fcr a

constitutionally scund proportionality review.

Altho.gh the Court in Solem was reviewing a sentence of

imprisonment for a term of years, it is clear that the Eighth

Amendment proportionality principle applies more strincently--not

less--in death sentence cases. Sclem, supra, 103 S.Ct. 3007; id.

at 3017, 3016 (Burger, C.J., with White, Rehnquist, and O'Connor,

J.J., Gissenting). See also, Enmund v. Florida, 458 U.S. P

i102 S.Ct. 3368, 3386 n. 27 (1982) (O’°Connor, J. with Buroer, C.J.,

Powell, and Rehnquist, J.J., dissenting). (Court has conducted

less searching inquiry for punishments less than death.) Solem

itself was anchored ir the holdings of previous death penalty

cases that recognized that the Eighth Amendment is a national

Standard and that the “contemporary vaives® of the country must

be assessed in

determining whether the death penalty is disproportionate in a

particular case. Such a determination is basec upon an

individualized assessment of “the character of the individual and

the circumstances of the crime” in that case. Solem, supra, 103

S.Ct. at 3010 n. 17; Zant v. Stephens, U.S. » 103 §.Ct.

2733, 2744 (19863); Enmund, supra; Coker v. Georgia, 433 U.£. 584,

97 S.Ct. 2861 (1977). Indeed, as the dissenting opinion in Solem

indicates, all Justices agree that the principle must be appliec

in capital punishment cases. Solem, supra, 103 S.Ct. at 302).

See also, Enmund v. Florida, supra, 102 §.Ct. at 3385 (O'Connor,

J., with Burger, C.J., Powell, and Rehnquist, J.J., dissenting).

In Enmund v. Florida, supra, for example, the Court found

that a death sentence was disapropertionate to the crime

committed by the deferdant even though he was convictec of murder

under Florida law. ° In givine individualized consideration to

the facts concerning Enmund and his offense, the Court relied

heavily on its prior opinion in Coker v. Georgia, supra, which

reviewed objective factors, including not only what other state

legislatures hac prescribed for similar conduct, but also, what

"American juries” across the country had actually done in such

cases. Enmund, supra, 102 S.Ct. at 3372-74; id. at 3386

(O'Connor, J., with Burger, C.J., Powell and Rehnguist, J.J.

Gissenting). Thus, Soler only applied to a nen-capital

punishment case proportionality analysis principles that had been

established in pricr capital cases.

SI Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960 (1976),

this Court upheld the Florida death statute on its face as to

cases of deliberate murder by a defendart. Proffitt was decided

the same day as S38 Vv. Georgie: 42@ u.s. SOI, 5€ s.ct. 2909,

2932 (1976), which he that the imposition of capital punishment

for the crime of murder when a life was taken deliberately by the

offender is not invariably disproportionate to the crime.

(Emphasis acdcdec). Of course, "no penalty is per se

constitutional.” Solem, supra, 103 S.Ct. 3009, 3010.

In 1981, recognizing the constitutional requirement of

appellate proportionality analysis of ceath penalties, the

Alabama legislature amended its statutes to require the Alabama

Court of Criminal Appeals, subject to the review by the Alabara

Supreme"Court, to determine:

Whether the sentence of death is exces-

sive or disproportionate to the penalty

imposed in similar cases, consicering

both the crime and the Defendant.

§13A-5-53(B) (3), Code of Alabama (1975).

The petitioner in thie case urges that the Alabara

legislature correctly concluded that appellate proportionality

analysis is constitutionally required, and must be based upon the

individualized facts and circumstances cf each case. See, Solem,

supra, 103 S.Ct. at 3010; Stephens, supra, 103 S.Ct. at 2742,

2744. See alsc, Harris v. Puliey, €92 F.2d 1189, 1196 (9th Cir.

1982), cert. granted, 103 $.Ct. 1425 (1983).

Fetitioner raised the issue of preporticnality on appeal to

both the Alabama Court of Cririnal Appeals anc the Supreme Court

of Alabama. Each appellate court purported to conéuct

provertionality review. However, each merely referred to three

reported Alabara cases in which a death penalty hae been assessed

against a defencent for murdering a police officer. Neither

considered sentences provided fcr or given by legislatures and

juries from other states in the country for similar crimes by

similar defendants. Dobard v. State, supra, 435 Sco.2d at 1345;

Ex Parte Dobard, supra, 435 So.2d at 135€&. Each court, therefore

failed to address the third objective factor of Solem v. Helm:

Tun like the actions of the appellate courts in Georgia and

Florida in conducting proportionality reviews, the Alabama courts

have apparently never reversed a death sentence as being

disproportionate. See, Sash’ supra, 96 S.Ct. at 2940; Proffitt,

supra, 96 S.Ct. ot 2969- "

™

that the sentence imposed upon Dobard not be disproportionate to

sentences for the same crime imposed ir. other jurisdictions.

Accordingly, Petitoner recuests this Court grant a writ of

certiorari to address the issue of the Alabama Supreme Court's

failure to conduct review consistent with the standards set out

in Solem v. Helm, supra.

II. The Alabama Supreme Court Violated This Court's Witherspoon

Mandate When It Permitted Dismissal Of Juror Cannon For Cause.

This Court. Could Avoid The Flocd Of Witherspoon Claims By

Promulgating A Uniform Witherspoon Inquiry.

Four times in the iast fifteer years, this Court has

reviewec dismissal for cause of death-scrupled jurors, and four

times the message has been unmistakably clear:

The most thet can be demanded of a venireman in this recard

is that he be willine tc consider all of the penalties

provides by state law, and that he not be irrevocably

committed, before the trial has begun, to vote against the

penalty of death recardless of the facte and circumstances

that might ererce in the course of the proceedings.

Witherspoon v. Illinois, 39! U.S. $10, 522 n.21, 88 S. Ct. 1770,

i777 m. 21 (19€8) (emphasis in oricinal). While the Court has

mot limitec a state's right to seek dismissal for cause of a

Juror unwillinc even tc consider the death penalty, the standards

set by this Court for dismissal are strict and unequivocal. The

juror must make it:

unmistakably clear (1) that they would automatically

vote against imposition of capital punishment without

regerd to any evidence that micht be developed at the

trial of the case before them, or (2) that their

attitude toward the death penalty would prevent them

from making an impartial decision as to the defendant's

guilt.

ic. (emphasis in oricinal). Accord Adams v. Texas, 448 U.S. 38,

44, 100 S.Ct. 2521, 2525-26 (1980) (invalidating Texas' death

qualification provision in light of Witherspoon); Maxwell v.

Bishop, 398 U.S. 2€2, 264-66, 90 S.Ct. 1578, 1580-81 (1970)

(remanded in light of Witherspoon); Boulder v. Holmen, 394 U.S.

476, 481, 89 S.Ct. 1138, 114C (1569) (same). See also, Davis v.

Georgia, 429 U.S. 122, 97 §.Ct. 399 (1976) (Witherspoon mandates

reversal ever if °rerely one” juror was Gismissec improperly).

Yet, despite an unwavering mandate from this Court and

Alabama's own stated commitrent to follow that mancate, Liddell

v. State, 287 Ale. 299, 251 Sc.id 601 (1971), the Alabama Suprere

Court in this case countenanced dismissal of a juror whose

response to the Witherspoon inquiry was lacking entirely in

®unmistakable” clarity. Further, the Alabama Supreme Court

Opinion in Dobard follows the pettern of many state ard feceral

courts which, since Witherspoor, have encaged in torturous

semantic hair-splittine litigation over Witherspoon compliance.

These judicial serantic exercises occur in response to post hoc

rationalizations of eae failure tc comply with standards neither

@ifficult to compreherc nor impossible to follow. In light of

the strict and clear requirements of ‘sitherspoon, however, such

hair-splitting is both inappropriate and unnecessary.

Accordingly, Petitioner's argument proceeds in two perts.

First, the dismissal for cavse of Juror Cannon failed to comply

with the Witherspoon regu:remernts. Second, petitioner

respectfully sugcests the time has come for this Court to

establish a uniform Witherspoon inquiry, anc thereby ster the

tide of wasteful Witherspoo:. litication.

a. The Alabama Supreme Court’s Failure To Reverse On The

Basis Of The Trial Court's Dismissal For Cause Of Juror Cannon

Was Vioclative Of Petitioner's Due Process Rights, In Direct

Contravention Of This Court's Witherspoon Mandate.

Juror Daisy Cannon was questioned as part of the first jury

panel seated. The trial judge conducted the initial examination,

in the course of which he asked, without response:

THE COURT:

res

THE COURT:

MR.

CANNON:

WATKINS:

Now in this case, the State of Alabama is

asking that the jury fix the punishment a¢

death if the defendant is convicted. I

want to ask you: Is there anyone on the

jury panel that has &@ fixec opinion

against capital punishment or imprisonment

in the penitentiary? Dees anyone have

that fixed opinion against capital punish-

ment:

I would like to know if you @o ance <«

be embarrassed by saying that if you co o

t I would like to know if anmyone 1

sec to capital punishment in any way

A fixed opinion in any way abou

capital punishment:

urcr

hac

scruples, the prosecutor pursuec the matter,

ae Ladies and Gentlemen, the jucce

has already aualified you on capital

punishment, but I would like to gc into it

a little bit further to make sure that we

understand each other. This case that we

are going to try is one of the cases

enumerated in the statute that says that a

merson may receive death if you fine hir

guilty of a certain offense; and, I want

to know if we all understana eech other,

that each of you are tellinc re

individually that if you believe beyond @

reasonable doubt and to a moral certainty,

the necessary elements to return a

verdict, which would mean that this person

would be put to death by electrocutior,

that you would be able tc do that? is

that what everybody is telling me? I¢

there anybody that woulc not be able to do

that?

I don't believe I would.

All right; would you please stand up and

A 2

give your name, please ma‘am?

Daisy Cannon. And, I just don't believe !

could send anyone to the electric chair.

Mrs. Cannon, are you telling the Court

that no matter what the evidence is; that

if you believe beyond a reasonable doubt

and to a moral certainty that this person

Gid it; that if we fcllow the statute to

show that we can prove all the necessary

elements, that you would not be abie to

vote guilty if it meant that he would be

sent to death?

PJ CANNON: I don't think I would.

THE COURT: All rieht; thank you for your canccr Prs.

Cannon.

WR. WATKINS: We ask that she be excused for cause,

THE COURT: All richt; I will take that up later. (R.

25 mphasis suppliec)

Although Juror Cenron's response indicates some personal

hesitation about imposing the deat! penalty, her equivoceting

response fails to meet either prong of the Witherspoon test.

See Witherspoon v. Illinois, 391 U.S. $10, $22 n.21, 88 S. Ct.

‘777 Se Medians

1770, l mr. 2) (1966). Certainly, it does not make

"unmistakably clear” that if instructed on the law of the state,

after swearinc tc follow that law, Juror Cannon would be unable

to follow her cath, and perform her sworn duty tc consider the

The Alabara Supreme Court sustained the validity of Juror

Cannon's cCGisrissa: “hat court fovnd “it difficult to envision

how [Juror Cannor -ould have been more explicit in expressing 4n

urcualifiec oppositicn to the ceath penalty.”

Fx parte Dobard,

supra, 435 $c.2¢ at 135€. Wath all due respect, pet.ticner has

ne such difficulty ha 2 simple “yes” or “no” veen requested

from Juror Cannon, petitioner would not be brieting this issue in

yes," dismissal of Juror

Ecounse! for petitioner objected to the dismissal of Juror

Cannon (R. 313), and the Alabama Supreme Court addressec the

issue on the merits. Ex parte Dobardc, supra, 435 So.2d at 1356.

Cannon would comply with Witherspoon; conversely, a “no” or

another equivocal answer woulc irdicate Juror Cannon was

, it : 9

ineligible for exciusion.

Given the uncertain nature of Juror Cannon's resporse, it

was incumbent upon the trial court to pursue the line of

cuestioning. This Court previously has indicatec such af,

approach is recuired. See Witherspoon v. I111inois, Supra, 391}

‘7-77

U.S. at $22 n.2]}, 86 S. Ct. at 4 mn.21 (jurer must make

opposition “unmistakably clear"); Adars v. Texas, supra, 448 U.S.

at SO, 100 S. Ct. at 2529 (*neither nervousness, emotional

involvement nor inability to deny or confirm any effect whatso-

ever” valic grounds for excluding death-scruplec suror;

"unmistakably clear” remains the standard). See also, Burns v.

Estelie, $92 F.24 1297, 1300 (Sth Cir. 1979), adhered to 626 F.2¢e

396 (Sth Cir. 1980) ten banc) (premature dismissal cf juror;

impossible to know what juror might have said uncer further

questioninc). This faisiure on the part of the trial court to

inguire further and to obtain é&r "unmistakably clear” response

clearly contravenec the requirements of Witherspoon anc its

progeny.

Further, althouch petitioner asserts, intra, that the lower

federal ccurts have not applied Witherspoon iz a fashion

consistent with this Court’s opinions, the response given by

Juror Cannon fails to pass muster under those decisions 4s well.

Sec Witt v. Wainwright, 714 F.2d 1069, 1080-83 (llth Cir. 1963)

("I think it would" falls short of certainty required by

Witherspoon); Hance v. Zant, 696 F.2d 940, 954-56 (llth Cir.

1983) (juror's response that, although in some cases death

penalty might be warrantec "1 do not believe that © could vote

9o¢ course the State could still remove Juror Cannon by use

cf a peremptory strike. But see Winick, Prosecutorial Peremptor

Challenge Practices in Ca ital Cases: An

for it,” unacceptable under itherspoon); Granviel v. Estelie,

655 F.2¢€ 673, 677 (Sth Cir. 1981) (°No, I don’t think I could”

unacceptable under Witherspoon; follow-up question failed tec

clear uncertainty) (emphasis if riginal), cert. denied, 455

U.S. 1003, 102 S.Ct. 1626 (1967). But see Darden v. Wainwright,

699 F.2¢€ i031, 1} -4 (lic? ir. 1983) ("1 believe I would®

acceptable inder Witherspoon) (emphasis supplied), mandate

withheld pending reh. en banc, ic. at 1043."

The erroneous cismissé f even one uror

requires reversa f petitioner’ nviction.

Sew Gee Lad, 123, 9 S. t So, (1976) (per curiam).

Dismissal of ror Can: was erron s under the opinions of

this Court, weil as the Pinions of the redcera: ircuit in

which Alabama is i atec. Give that the Alabama Supreme Court's

approac? t the Witherspoon i if is ir nflict with the

holdings f thi rt af the feceral ppellate courts in the

feder ircuit . , Alat i 8 part, ertiorari i8s

appropriate.

10, a

Judge lark noted his dissent to the panel opinion inf

Darden, 699 F.2d at 1(43.

b. The Erroneous Decision Of The Alabama Supreme Court In

This Case Is Only One Decision In A Flood Of Witherspoon

Litigation, Which This Court Could Avoid By Promulgating A

Uniform Standard For Witherspoon Voir Dire.

Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770 (1968)

continues to giv rise to a plethcra cf cases assessing

compliance with its mancete. The opinicns in those cases are

exercises in semantic hair-spiitting, struggling to cetermine

whether a juror has mace "unmistakably clear" an inability to

comply with his juror’s oath. Compare McCorguodale v. Balkcom,

r. 1983) (invalidating group voir

dire and nonverbal response; reversing as errer dismissal of

‘uror who state that she @id not “think” she coulc vote for

Geath penalty), mandate withheld pending reh. en banc,

F.26 (1983); Bance v- Zant, supra, 696 F.2d at 955 (juror

stated that although death penalty may be appropriate in some

cases "1 do not believe I could vote for it*; lanequace held

unacceptable under Witherspoon! : Granviel v. Estelle, supra, 655

F.2c at 67; (i don’t thins I could" unacceptable uncer

Witherspoon; confusion not cleared up by subsequent questioning)

with Martin v. Magcio, 72. F.2a 1272, 1285-86 (Sth Cir. 19€3)

{though “crucial® question neve: answered, it would be exaltatior

form over substance” to reverse Gismissal of juror for

cause); McCorquodale _v. Balkcom, supra, 705 F.2d at 1565

(Kravitch, J. dissenting) ("zr don't think I could do it,

qualified by “1 really don’t,° sufficiently unambiguous to permit

ffirmance under Witherspoon); Darcen v. Wainwright, supra, 699

F.24 at 103& ("I believe I would" acceptable under Witherspoon).

opinion for a Gividec panel of the Eleventh

Circuit in Darden v. Wainwright, supra, 699 F.2d 1031, suggests

both the reason for the difficulty anc é solution:

Neither itherspoon nor Adams provides trial courts

with the forumula or requisite colloquy for the proper

excusal for jurors on Witherspoon grounds. Instead,

the trial judge must decide whether each particular

venireperson has made it “unmistakably clear® that he

or she is within one of the two prones of Witherspoon.

The trial judce is in the best position to evaluate the

prospective juror's demeanor ané answers tc the

questions. For this reason, trial judces are generally

accorded broac discretion in evaluating juror

impartiality.

Id. at 1037, mandate withheld pending reh. en banc, ic. at

1043. While in a broad sense the Darden majority is correct, the

Witherspoon opinion admits of far less leeway than the Darden

opinion would suggest. There are two grounds, and two grounds

only, upon which a juror may be dismicsed under Witherspoon; the

answer to the inquiry must be definite anc susceptible of only

one interpretation.

Petitioner respectfully suggests the time has come for this

Court to propound specific Witherspoon questions, and acain

amnounce that there must be concretc answers. There is no gcod

reason tc refrair from such a pronouncement. In Witt v.

Wainwright, supra, 714 F.2d at 1083, the State urged that the

appellate cour "avoid imposing the de facto requirement that

prosecutors ask each prospective Juror certain standard cuestions

and receive talismanic anewers before excusal fe

cause may be

justified.* Id. at 1083. The petitioner urges no resort to

magic but fails to understanc why a clear, common sense answer

shoulc not be obtained if availabie. jitherspoor, in fact,

supports this approach. A properly ftramed and properly answerec

Witherspoon inquiry will leave ro room for doukt as to whether

the responding juror should be dismissec for cause.

this the Witherspoon mandate were enforced, there would be

no need for rial cudges to play amateur psychologists and

semanticists--particularly inappropriate when a defendant's life

is at stake.

i2.;

Although prosecutors may have an aversion to so-called

“talismanic® “°yes® : "no" requirements, those dre the only

anc no

answers that make ea ‘uror'’s position “unmistakably clear.*®

There is much to be gained from such a pronouncement.

Certainly it is a greater affront to notions ef comity to subject

voir dire in every capital case to repetitive review, than to

establish specific guidelines state courts must follow. Further,

there is no need to await experimentation in state and circuit

courts; the bounds of Witherspoon clearly are set out in that

éecision. In the interests cf federalism, and conservation cf

judicial resources, as well as the protection of compelling

constitutional rights, petitioner suggests this case if an

appropriate vehicle in which to propound mandatory Witherspoon

standards. In any event, the trial court erred in allowine the

dismissal of Juror Cannon.

eG ti

III. The Petitioner's Convictien And Subsequent Death Sentence

Were Assessed in Violation Of Due Process Because The Trial Court

Refusec 10 Determine Whether 7? Sequestered Petit Jury has

Improperly Influencec As A Resu Of Viewing Televised Accounts

Cf, And Cormertaries About, The Attempted Assartination of

President Ronald Reagan.

The Dobard jury was impaneled on March 30, 1961, ane se-

guestered for the duration of the trial and sentencing. Se-

questration of jurors, particuleriy in capital cases, serves two

purposes: (1) "nething shall occur outside of the trial which

could] disturb their minds. leaving the jury entirely occupied

with consideration of the case which they are worn to try,°

Leith v. State, 206 Ala. 435, 443, 90 Sc. 647, 6912 (1921); anc

(2) the jury should be free from ali outsice or improper influ-

ences or communications, Ray v. State, 257 Ala. 418, 59 So.2d 582

(1952). Accord Rermmer v. United States, 347 U.S. 227, 74 S. Ct.

450 (1954). On the same day the Dobard jury was sequestered John

Hinkley, Jr. attempted to assassinate the President of the Unitec

States, an event attended by extensive mecia coverage and

commentary. Yet, despite the importance of sequestration, the

trial judge found, as a fact, that jurors were permitted to view

television accounts of the assassination attempt.

In flagrant disregard of ail customary due process

principles, to this date no court has ascertained what it was the

jury saw, or what effect the media coverage might have had on the

trial of this case. Trial counsel sought to question the jury

while they were still impaneled (R. 774, 775), but that request

was dismised abruptly. At every subsequent stace of this

proceeding counsel has identified the problem anc requested

relief. At every stace relief was denied.

Proceedings before the Alabama Supreme Court were no

exception; that court's cursory review fails to do justice to

petitioner's due process claim. First, the court addressed only

the federal due process issue, ignoring the state constitutional

claim altogether. Second, the only analysis done under the

federal due process claim was to distinguish two state cases

cited by petitioner in brief. Third, with no basis in the

record, the Alabarna Supreme Court cecided as a matter of fact

that viewing media coverace of the assassination attempt "did not

influence the jurors to the extent that they would have acted

without evidence." Ex Parte Dobard, supra, 435 So.2a at 1354.

Finally, the Alabama Supreme Court failed entirely to address the

influence of the media commentary on the jurors in the sentencing

phase of the trial.

"(T]he right to jury trial guarantees to the criminally

accused a fair trial by a panel of impartial, ‘indifferent’

jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 §. Ct. 1639

(1961). "The right to a trial by an impartial jury lies at the

very heart of due process.” Smith v. Phillips, 455 U.S. 209,

102 S. Ct. 940, 950 (1982) (Marshall J., dissenting). This

Court, and the lower federal courts, have emphasizec the

importance of the impartial jury right in numerous contexts.

E.g., Irvin v. Dowd, supra (pretrial publicity); Remmer v. United

States, 347 U.S. 227, 74 S. Ct. 450 (1954) (private communication

with juror); United States v. Bagnariol, 665 F.2d 877, 8€&3-84

(9th Cir. 1981) (extra-record information sought by juror), cert.

denied, 102 S. Ct. 2040 (1982); Paz v. United States, 462 F.2d

740 (Sth Cir. 1972) (extra-record materials in jury room).

In United States v. Bagnariol, 665 F.24 877 (9th Cir. 1981),

the court conducted an exhaustive study of federal cases in which

juror partiality was questioned as a result of jurors coming into

contact with individuals, or information, outside the contours of

the case. The Bagnariol court's study reveals the following

general rule, applicable throughout the federal courts:

The trial court, upon learning of a possible

incident of juror misconduct, must hold an evidentiary

hearing to determine the precise nature of the

extraneous information. The defendant is entitled to a

new trial if the judge finds a “possibility that the

extrinsic material could have affected the verdict."

Id. at 885, quoting United States v. Vasquez, 597 F.2d 192, 193

(9th Cir. 1979). Accord Smith v. Phillips, 455 U.S. 269, 215,

102 S. Ct. 940, 945 (1962) (remedy for allegation of juror

partiality is hearing) ;2? Remmer v. United States, supra, 347

U.S. at 229, 74 ©. Ct. at 451 (private communication with juror

gives rise to presumption of prejudice; remedy is hearing to

ascertain whether contact was harmless); Paz v. United Stetes,

supra, 462 F.2d at 745-46 (once it is ascertained extra-record

L3cmith, decided this past term, indicates the burcen 18 oF

the defendant to prove “actual bias" on the part of the juror.

Althouch arguably this conflicts with the standard that the

verdict must be reversed if there is a4 “possibility” the extrin-

sic material affected the verdict, Smith, on its facts, is e@

somewhat different case than the “extrinsic material” cases.

Smith involved a juror applying for a job in the prosecutor's

office. Smith, however, is in accore with the other cases if

holding the initial step to remedy a claim of impartiality is @

hearing.

books were before jurors, remedy is remand for hearing to see if

any “possibility” extrinsic material affected verdict).

Alabama law applies an even stricter test than federal law.

With the exception cf the present case, the Alabama Supreme Court

consistently has recognized the need to keep the jury “separated

from, and uninfluenced by, the outside world.” Oliver v. State,

232 Ala. 5, 10, 166 So. 615, 617 (1936). Accord Brickley v.

State, 266 Ala. 546, 548-49, 243 So.2d 502, 507 (1970); Seekers

v. State, 35 Ala. App. 40, 43, 44 So.2d 628, 631, cert. denied,

253 Ala. 420, 44 So.2d 633 (1949). Under Alabama law, the party

attacking the partiality of the jury only has the burden of

demonstrating that it was subject to some “vitiating influence.”

The test of vitiatinc influence is not that it did

influence a merber of the jury to act without evidence,

but that it migrt have unlawfully influenced that juror

and others with whom he deliberated, and might have

unlawfully influenced its verdict rendered."

Oliver v. State, 232 Ala. 5, 10, 166 So. 615, 617 (193€). See

also Ex Parte Dobard, 435 So.2d 1351, 1354 (Ala. 1983)

(purperting to apply test); Woods v. State, 367 So.2d 9&2, 964

(Ala. 1978) (issue not whether events did influence juror, but

whether events might have influenced juror) (emphasis in

original.) Once that influence is shown, the onus of showing

that no prejudice resulted from the “vitiating influence” is upon

the prosecution. Oliver v. State, 232 Ala. 5, 166 Se. 615

(1936); See also Woods v. State, 367 So.zc 982, 984 (1976)

(prosecution raises issue of vitiating influence; burden shifts

to defendant to rebut).

In the instant cause the trial court violated principles of

both federal and state cue process when it failed to pursue the

matter once the defense presented the court with evidence that a

*“vitiating influence” had reached the sequestered jurors. In

this context, the state Supreme Court's “holding"--that viewing

the assassination attempt did not influence the jurors--is

absurd, as it is unsupported by any evidence. The Alabama

Supreme Court stated:

Whatever “editorial message” the jurors in this case

could have gleaned from the news accounts of the

attempts on President Reagan's life was certainly

unrelated and detached from their deliberations about

this case. To hold otherwise would be to delve into

boundless speculation.

With all due respect, in the face of the lower court's refusal to

pursue the matter, it is “boundless speculation" to assume

anything but that the jurors were influenced. Any other

speculation is forbidden by Alabama law. E.g., Brickley v.

State, 2&6 Ala. 54€, 550-51, 243 So.2d 502, 507 (1970); Seekers

v. State, 35 Ala. App. 40, 45 44 So.2d 628, 633, cert. denied,

253 Ala. 420, 44 Sc.2d 633 (1949). This Court should be

reluctant, particularly in a capital case, to attribute such

omniscience to the Supreme Court of Alabama, which evidently made

its finding without any evidence in the record.

The Alabama Supreme Court's legal analysis of petitioner's

federal claim also was inadequate, limited as it was to

Gistinguishing two state cases cited by petitioner: Seekers v.

State, 35 Ala. App. 40, 44 So.2d 628 (Ala. Cir. App. 1949), cert.

denied, 253 Ala. 420, 44 So.2d 633 (1950); Styles v. State, 129

eee, oe S5Ct. 249 (1907). Further, even this limited

analysis by the Alabama Supreme Court is disingenuous; both cases

are distinevished from Dobard on their facts, with no regard for

the legal hcldings. In reality, both Seekers and Styles provide

strong support for petitioner's position.

In Styles a jury sequestered in a capital case was permitted

te read the local newspaper which contained an editorial,

unrelatec to the case before the jury, but generally to the

effect that juries in capital cases were not doine their part to

enforce state laws. The Styles court held that when improper

mater:2l1 is brought before a jury, the defendant is presumed

prejudiced and a new trial must be granted unless the prosecution

rebuts the presumption. 129 Ga. at 431, 59 S.E. at 252. The

court expressly noted:

Whether, after reading the article, the jurors would

again have said that their minds were perfectly

impartial between the state anc the accused, or that

there was no bias or prejudice resting upon their

minds, either for or against the accused, we have no

means of knowing. Those guestions were not again put

to the jurors.

Id., 129 Ga. at 426, 59 S.E. at 250. Likewise, here, the trial

judge refused to poll the jury concerning the effect coverage of

the attempted assassination had on the capital jury, despite

repeatec requests by counsel.

In Seekers v. State, supra, which relied heavily on Styles,

the jury was permitted toc attend a movie theatre. The film

vrewed by the jury was excessively violent. The Alabama Court of

Appeals held:

- « «+ we are confronted with only the evidence

introduced by the appeliant in support of his motion

for a new trial. We would be compelled to enter into

the realm of speculation, conjecture and surmise to

hold that by witnessing the performance the jury wae

not unduly influenced against the interests of the

accused.

Id., 35 Ala. App. at 45, 44 So. 2d at 632-33. The court declined

to so speculate, and ordered a new trial. Id.

The Alabama Supreme Court seeks toc distinguish the two

cases, because in both the content of the medium viewed bore

great similarity to the facts at trial. The Styles court,

however, disclaimed such a limited holding:

It is insisted that the defendant could not have been

injured, because the article did not make reference to

the particular case on trial. The fact that the case

is not speciaily named does not necessarily deprive the

argument for convictions, as contained in the

editorial, of its injurious effect.

The argument made ro exceptions and was addressed to

all prosecutions in murder cases which in general terms

embraced the case under consideration.

125 Ga. at 428-29, 59 S.E. at 250-51 (emphasis supplied). In

this case, the editorialization surrounding the attempted

assassination of the President surely woulc have prejudicial

effect; particularly so in this case because the jury was not

only to determine guilt but also to decide whether Dobard was tc

receive a sentence of death.

Further, facts relied upo: by the Alabama Supreme Court to

distinguish the Seekers case were not relied upon by the Seekers

court itself. The Seekers court did admonish, however:

The courts generally are very emphatic in condemning

anc disapproving the practice of allowing jurcrs

impaneled in grave criminal cases to attend any form of

public entertainment.

Seekers v. State, supra, 35 Ala. App. at 44, 44 So. 2d at 631

(emphasis supplied). Noting the jury was given the task, not

only of finding guilt or innocence, but of affixing punishment as

well, 35 Ala. App. at 45, 44 Sco.2d at 632, the Seekers court

held, in the absence cf proof of harmless error by the state,

that a new trial must be held.

The Alabama Supreme Court's opinion in this case simply

fails to address the issue presented. When trial counsel

realizec the jury may have viewed prejudicial material, he

promptly raised the question. The jury still was impaneled.

Counsel requested a poll. The trial court ignored the request

for a poll but "assumed" that the jurors had viewed the

television accounts and commentaries. (R. 774). Refusal tc so

poll the jury, or to otherwise hold a hearing tc determine

prejucice, constituted reversible error.

In Styles v. State, supra, the Supreme Court of Georcia

stated:

The state is jealous of the rights and liberties ct its

people. When one of its citizens is accused of crime,

it throws around him all the safeguards that are

possible, in order to procure him a fair and impartial

trial. . . . The law contemplates that, when a jury

are selected and sworn to try a citizen for felony,

they shall be entirely separated from the world, and

that no communication whatsoever shall be had with them

from the beginning of the trial until the verdict is

renderec, unless by leave of the Court. It

contemplates that no outside influence shall be brought

to bear on the minds of the jury, and that nothince

shall occur outside of the trial which shall disturb

their minds in any way; that the minds of the jury

shall be entirely occupied with the consideration of

the case which they are sworn to try.

129 Ga. at 432, 59 S.E. at 262 quoting Shaw v. Shaw, 83 Ga. 92, 9

S.E. 768. Both Styles and Shaw are forebears to Alabama law in

this area. See Seekers v. State, 35 Ala. App. 40, 44 Sc.2d 628,

631-32 (1949), cert. denied, 253 Ala. 420, 44 So.2d 633 (1950)

(relying on Styles and Shaw). It is regrettable that in this

case the Supreme Court of Alabama has seer: fit to be considerably

less jealous of the "rioghts and liberties” of petitioner Dobard,

but that being so, petitioner properly looks to this Court for

redress, Sarefoot v. Estelle, 103 S. Ct. 3383, 3391 (1983), and

requests the writ issue.

CONCLUSION

For the reasons stated above, and so that Percy Leo

Dobard is not electrocuted without being given a fair trial

and review of his sentence, the Petition should be granted.

Submitted by,

Ralph I. Knowles,’ Jr. ye

DRAKE, KNOWLES & PIERCE

Post Office Box 86

Tuscaloosa, Alabama 35402

} ee

plo CRE

OA. -

Barry £. Friedman

Iniversity of Alabama

School of Law

a Post Office Box 1435

University, Alabama 35486

ATTORNEYS FOR PETITIONER

CERTIFICATE OF SERVICE

I, the undersigned attorney, do hereby certify that prior

to filing the foregoing or immediately thereafter, I caused

to be mailed a true and correct copy of same, United States

postage prepaid, and correctly addressed to Ed Carnes,

Assistant Attorney General, State of Alabama.

Done this <¢ day of November, 1983.

a, a Pe

4 ae $i

1 TAK AA

Attorney for Petitioner

——

IN THE 83-5695

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1983 RECEIVED

NOV3 1963

NO. A-185

OFFICE OF THE CLERK

SUPREME COURT, U. S.

PERCY LEO DOBARD,

PETITIONER,

vs.

STATE OF ALABAMA, Zz

RESPONDENT.

MOTION TO PROCEED IN FORMA PAUPERIS

The Petitioner, Percy Leo Dobard, does hereby request,

pursuant to Rule 46, Supreme Court Rules, that he be allowed

to proceed in this Court in forma pauperis.

The Alabama Supreme Court, Court of Criminal Appeals,

and the Circuit Court of Marengo County, Alabama, have all

found the Petitioner to be indigent, appointed counsel for him

and allowed him to proceed in forma pauperis.

The in forma pauperis affidavit of the Petitioner

is attached.

Submitted by,

FA Hrowh Jn,

alpf I. Knowles, Jr.

DRAKE, KNOWLES & PIERCE

Post Office Box 86

Tuscaloosa, AL 35402

Post Office Box 1435

University, Alabama 35486

ATTORNEYS FOR PETITIONER

CERTIFICATE OF SERVICE

I, the undersigned attorney, do hereby certify that prior

to filing the foregoing or immediately thereafter, I caused to

be mailed a true and correct copy of same, United States postage

prepaid, and correctly addressed to Ed Carnes, Assistant Attorney

General, State of Alabama.

Done this ¢ day of Nae. Ler, aes.

Attornéy for Petitioner

-2-

I do now own any real estate, stocks, bonds, notes,

automobiles, or other valuable property (excluding ordinary

household furnishings and clothing).

If i were able to support them, the following persons

would be dependent upon me for support. My relationship to

those persons is listed.

Name Relationship

MBS A iile BER EWM a LUBA __ RELE

Brkt ALE WAC E Soa

RA¢aH ECKARE 0K!

The above statements are true and I understand that a

false statement made herein will subject me to penalties of

_—

= o —~ /

ord an A Jt. - ¢ 4 AC% b

Percy Leo Dobard

perjury.

Subscribed and sworn to before me this S tm of

October, 1983. ‘

IN THE

SUPREME COURT OF THE UNITED STATES

PERCY LEO DOBARD, OCTOBER TERM, 1983

PETITIONER,

TATE OF ALABAMA,

)

vs. ) NO. A-185

)

RESPONDENT. )

AFFIDAVIT IN SUPPORT OF MOTION TO

PROCEED IN FORMA PAUPERIS

I, Percy Leo Dobard, being first duly sworn, depose

and say that I am the Petitioner, in the above-entitled

case; that in support of my motion to proceed on appeal

without being required to prepay fees, costs or give

security therefor, I state that because of my poverty I

am unable to pay the costs of said proceeding or to give

security therefor; and that I believe I am entitled to

redress. I was found to be indigent by the trial and

appellate courts of Alabama and was appointed counsel

through the Supreme Court of Alabama.

I am not presently employed. I have not received

within the past twelve (12) months any income from a busi-

ness, profession, or other form cf self-employment, or in

the form of rent payments, interest, dividends or other

sources.

The total value of any cash and items owned by me is

EX PARTE DOBARD

Als 1351

(Cite os 436 S036 128! (Am 1963)

APPENDIX A—Coatinued

ant tlodeath The Defendant, after being

asked uf be bas anything further to aay why

sentence of law should not be now imposed

gpon bm, says nothing

It is, therefore, ORDERED, ADJUDGED

and DECREED by the Court that the De-

fendant, Perey Leo Dobard, is sentenced

death by electroculon as provided by the

laws of the State of Alabama The execu-

Uon of the sentence of death suspended,

pending the sulomatic appeal required by

law. It is further ORDERED that David

Reid, Livingston, Alabama, w appointed to

represent the Defendant on appeal and an

appeal to the Court of Criminal Appeals of

Alabama entered as required by law

It w further ORDERED that the Defend-

ant, Percy Leo Dobard, remain in custody

during the pendency of the appeal, and that

the Sheriff of Sumter County, Alabama,

forthwith transport Ue Defendant to tbe

Wiliam C. Holman unit of the prison sy»

tem and deliver bim to the custody of the

Warden of William C Holman unit of the

preon sysiem at Atmore, Alabama

All DONE and ORDERED thu, the 13th

day of April, 1981

Gf Caud D Neilson

CLAUD D NEILSON

CIRCUIT JUDGE

Ex jerte Perry Leo DOBARD.

(Re. Percy Leo Dobard

’.

State of Alabama).

sin.

Supreme Court «f Alabama

July 8, 1983

Rehearing Denied Aug 6, 1983.

Defendant was convicted ip tbe Carew

Court, Marengo County, Claud D. Neison,

4., of murder of a pole officer while on

duty, and he appealed The Court of Crimi-

nal Appeals, 435 So2d 1338, affirmed The

Supreme Court, Embry, J., held that: (1)

there was no showing that “young blacks”

were excluded from jury; (2) two jurors

who expressed unequivocal opposition to

death penalty were properly removed for

cause, (3) defendant was not depnved of

mght to fair ina! by news media coverage

of assassination atlempt on President Reag-

an which occurred dumng trial, (4) prosecu-

tor did not impermusibly comment on de-

fendant's exercise of his mght tw remain

alent, and (5) imposition of death penalty

was not duproporuonale

Affirmed

1. Criminal Law © 855(5)

Jury's exposure lo media coverage of

assassination attempt on hfe of president of

the United States, which occurred during

defendant's capital murder tnal, did not

deprive defendant of hw ngtt t « fair

wns!

2 Jury @ 3K5.1)

Record did not support defendant's

contenuon thal state used peremptory

strkes in an unconstitutional manner by

systematically excluding young blacks from

the jury, which wet composed of seven

blacks and five whites

% Jeary 106

No venireman may be removed for

cause unless it is determined that he views

as to capita! punmhment are so strung that

be would automatically refuse lo im, cee the

death sentence regardless of the evidence

produced.

4 Jury & 166 ,

Proapecuuve juror who imdscated thal

she would not be able to retura @ guilty

verdict of Uf meant Une imposition of the

death penalty and prospective juror who

tedicated that be had « fiszed opinion

against capilal puashment regardiess of

1352 Ale

what the evidence might be were properly

removed for cause.

& Jury & 131(17)

Prosecutor's questioning op vou dire

which asked jurors to promise that, if the

Slate proved beyond a reasonable doubt and

to @ mora! certainty that defendant was

guilty of the capital offense as charged,

they would return a verdict that would

place defendant in the electric chair and

cause bis death did not improperly eiicit

from the jurors the promise to impose the

death penalty if defendant was found

guilty

6 Criminal Law 1180

Defendant who did not present addi-

tuona! facts to the Court of Cnmina! Ap

peals by way of application for reheanng

could mui, on appeal to the Supreme Court,

argue facts not mentioned by the Court of

Crimina! Appeals Rules App.Proc., Rule

Sok)

7. Homicide 34

In view of evidence that defendant

fured shots which killed police officer, iumpo-

sition of the death penalty was permussible

& Crimina! Law @ 963

In view of evidence that it was defend-

ant who fired fata! shots at police officer

and that hus culpabiily was greater than

that of bis accom plica, imposition of death

penalty on defendant was not dispropor-

tonale to sentence of accomplice, who re-

ceived a term of years.

% Criminal Law © 1206.6(5)

State must prove aggravating arcum-

stances justifying death penalty beyond a

reasonable doubt

10. Homicide @ 3h

Evidence that defendant robbed s res

teurant and then drove at high speeds for

tome 30 miles, that be was stopped by «

police officer, and that the officer was shot

shorUy after approaching window ef ¢-

fendant's vehicle was sufficent to show

aggrevaling circumstances warran6ng im-

posivion of death penalty.

435 SOUTHERN REPORTER, 24 SERIES

IL Criminal Law @=966.2(1)

dudge and jury should consider both

Statutory asd nonslatulory miligsting ar-

cumstances in determining whether to im

pose the death penalty; that should include

all relevant evidence which includes not

only why a death sentence should be im-

posed but also why it should pot be im-

posed.

12 Criminal Law © 966.6(1)

Fact thal ponstatutory mitigating cr-

cumstances were not listed in sentencing

report did not show conclusively that they

were not considered by jury whic) was in-

structed to consider all mitigating circum-

slanes

13. Homi +e O34

In order ‘or the death sentence to be

imposed, an wtenuona!l killing with aggre

valon must be shown.

14. Indictment and Information © 113

Both an intentiona! killing and aggre-

vation must be averred in complaint in or

der for death penalty to be imposed Code

1975, § 18A-6-85

15. Homicide = 139

Indictment which charged thai defend-

aot did, unlawfully and with malice afore

thought, intentionally cause the death of

another by shooting him with pusiol while

the vicum was @ police officer on duty

averred both the gravamen ef the capital

offense and the required aggravation

Code 1975, § 13A~-5-85.

16. Criminal Law @721(3)

Where there is s possibility that a pros

ecutor’s comment sould be understood by

the jury as a reference to defendant's fail-

ure to testify, constitutional right to remais

silent is violated

17. Criminal Law @721/5)

Although defeodar and his female

companion were the op y persons who could

\estify to events surrounding shooting of

victim, prosecutor's closing argument that

there was no evidence before the jurors

which would lead them to believe that de-

fendant’s companion had abot ihe police

—————__

EX PARTE DOBARD

Ala 1353

Cite as 435 $0.36 135) (Ain 1983)

officer and that the evidence was undispul-

ed that defendant had shot and killed the

police officer was nol an umpermussible com-

ment on defendant's failure to testify.

David A. Reid, Livingston, for petitioner.

Charies A Graddick, Atty Gen and Ed

Carnes and Jean Williams Brown, Asst. At-

tys. Gen, for respondent

EMBRY, Justice

This case wa review of Une convicuon of

the peutioner, Percy Leo Dobard, for viola-

tion of § 13A-6-$1(a45), Code 1975, mur-

der of a polwe offwer on duty. After a

separate sentencing beanng. Dobard was

sentenced to death by electrocution The

Court of Crmina!l Appeals affirmed the

convicuon and sentence on 2B June 1962

This court msued the writ of ceruorari and

now affirms the deasion of the Court of

Criminal Appeals

After a careful review of the record, thu

court adopts the findings of fact as set

forth by the late Judge Barron

“Some ume between 5-00 am. and €:00

am on Saturday, June 21, 1980, O'Jim's

Restaurant in Evtaw, Alabama was

robbed by appellant and a female com-

panion, Jeanette Kennedy. After Kenne-

dy left Uhe restaurant, appellant pulled s

pistol on waitress Corethea Hitton and

demanded ‘give me ali your money” Ms

Hitton complied with the demand Ap

pellant and Kennedy speedily fled, and

Ms Hitton called the Eutaw Police.

“About 85 miles from the scene of the

robbery, appellant, who was dnving the

getaway vehicle, wes spotted by Laving-

ston Unistersity Police Officer Wayne

Sudduth, who was assusting in the search

for the suspects. Offer Sudduth was

aware that the robbery had occurred and

apparently had knowledge of the descrip-

tion of the getaway vebicle from a police

radi broadcast.

“Officer Sudduth informed Livingston

Police Officer Raymond Burne that he

was stopping the vehicle. Officer Sud-

duth, who was dressed in a bive uniform,

was Griving s marked pele car.

“With his flashing lights on, Officer

Sudduth stopped the vehicle which coo-

tained appellant and Kennedy. He ap

proached the driver's side of the car and

asked for appellant's driver's license.

Appellant opened the car door and

reached around as if to get his bilifold.

However, according to the testimony of

witness Kennedy, rather than removing

hus bilifold be grabbed a 38 caliber re

volver and shot Officer Sudduth, killing

him: The evidence indicated that officer

Sudduth did not have hus service revolver

drawn, as it was found in hus holster with

ihe safety strap in place.

“After the shootng of officer Sudduth,

appellant and Kennedy sped away, on!y

to wreck their vehicle on the western

edge of Livingston. Both exited the car

and walked up the road where they hid in

some bushes until a truck driven by Mr

Johnny Mathews approached Mathews

saw appellant come from under a bridge

and act as if he were injured Mathews

slated that appellant was yelling for help

and be stopped his truck on the side of

the road. -When appellant came within

close proximity of the truck, be pulled the

revolver, pointed it at Mathews's face and

demanded the keys to the truck. Afters

bref period of ume, during which Sumter

County Deputy Sheriff Ralph Rainey

drove past appellant, Kennedy, and Math-

ews, appellant secured the keys and fled

with Kennedy

“Deputy Rainey reported what he had

seen to the Livingston Police Department

“and was mformed that be had observed

/ tee restaurant robbery cuspects. Deputy

Rainey set 2 roadblock and while moving

his patrol car to allow a vehicle to pam,

appellant drove Mathew's truck past him.

A high speed chase ensued invelving -sev-

era) vehicles. .

“Another roadblock had been set by

York City police officers about halfway

between Livingston and York. As*the

truck approached, the officers st the

roadbiock began to fire at t Immediate

ty Unereafter, the truck wrecked and

1354 Ale

overturned SubsequenUy, Deputy Ra-

ney saw appenant throw « gun out of the

truck cab. Deputy Rainey immediately

retreved it Appellant and Kennedy

were Laken ino custody, transported w a

loca! bospita! for examination, and after-

wards taken to Sumter County Jail”

The petitioner raises six issues of this

review

The first issue posed by the petilioner wu

whether the media coverage surrounding

the attempted assassination of President

Reagan improperly influenced the jury and

thereby denied petitioner the mght to a fair

trial as guaranteed by the Fifth and Sixth

Amendments to the Consutution of the

United Listes

During the last two days of sequestrs-

tion, all the members of the jury were

allowed to, and did view on television, news

accounts of the assassination atlempt on

President Reagan The petitioner contends

this exposure unlawfully influenced tbe

jury by encouraging them to convict the

petitioner While it w not delineated in the

record precisely which news pecounts the

jury actually viewed, the petitioner claims

the news accounts were mddied with edilo

malizauon The subliminal message al-

legedly transmitted © viewers was thal

something was wrong wilh America aod

Amercans must lake scion. The available

course of action for the jury, argues Ube

petilioner, was to convict the petitioner of a

capital crime. Io support of this argument

the petulioner reles principally upoo the

doctrine of Seekers v. State, 35 Ala App #,

4 So2d 62%, cert denied, 353 Ala 420, 4

So.2d 633 (1949). \

lp Seekers the jury was taken to a More

which bore striking mmilarities to the case

being tried ~The crime charged, and that

portrayed in the movie, were both of a

violent nature. The location of the victim's

wounds in both instances was the same.

Earker that day, the jury had beard med)-

ca] ‘testimony concerning the wounds

Lastly, the film presented detailed accounts

of the tria! and convictions of the villains

435 SOUTHERN REPORTER, 24 SERIES

Considering the similariues between the

film and the tral, the court noted “We

would be compelled to enter into the realm

of speculation, conjecture aad surmise to

hold that by witnessing the performance

the jury was not unduly influeaced against

the interests of the sccused.” Seekers, su-

pra

[1] Seekers and Une cape at bar, how-

ever, are duwlnguishable Other than the

violent nature of the crimes involved, the

assassination allempt and peUloner’s case

bear few if any similarities This court

does not find that the news accounts com-

plained of influenced the jury in the present

case. Similarly, this court does not find

that television coverage of the event influ-

enced the jury through editorialzation to

the extent shown by Styles v. State, 129 Ga

43, 59 SE 29 (1907), as petitioner con

tends

In Styles, the jury, while sitting for a

murder case, was permitled lo read an ed)-

torial criticizing jurors for their reluctance

to convict murderers. The obvious umpact

and influence such an editorial could

promulgate is not present here. Whatever

“editona!l message” Use jurors in ths case

could have gleaned from the news accounts

of the attempts on Preadent Reagan's life

was certainly unrelated and detached from

their deliberations about this case. To bold

Otherwise would be to delve into boundless

speculauon.

“The test of vitialing influence is mot

that it did mfluence s member of the jury

lo act withoul evidence, bul that it might

have unlawfully inflvenced that juror and

others with whom be deliberated, aad

might have unlawfully influenced its ver-

dict rendered.” Roan v. State, 225 Alp 423,

435, 143 So. 454, 460 (1982) We bold the

exposure to televmion coverage of the assas-

nation attempt on Premdent Reagan did

not influence the jurors to the extent that

they would have acted without evidence.

Accordingly, the trial jadge properly denied

petutuoner's motion for a new trial based on

Ubese grounds ©

EX PARTE DOBARD

Ais 1355

Cire os 636 $0.26 135) (Ale 1983)

[2] The second contention raised w that

the State used iu peremptory sinkes in an

unconstituLonal manner by systematically

excluding “young blacks” from the jury

Petitioner is bieck and his victim, Officer

Sudduth, was white. The jury was com-

posed of seven blacks and five whites This

issue falls squarely under the tutelage of

Swain v Alabama, 380 US. 202, 8 SCt

824, 13 L Ed 2d 759, reh den, 381 US. 921,

85 S.Ct 1528, 14 L.Ed. 2d 442 (1965)

In order to make a constitutiona! claim

under the doctrine of Swain, petitioner

must allege a systematic use of peremptory

challenges against blacks over a penod of

ume Swain, 8 US at 227, & SCt at

639 «Otherwise, the presumption thal the

prosecutor ww ulilizing the State's strikes in

a fair and impartial manner must stand

Id, at 222, 6 S.Ct at 837 Petuuoner has

failed to meet the burden of proof an-

pounced in Swain Consequently, his claim

must fail Accord Apodaca v. Oregon, #6

US #4, 2 SC. 16%, @ LEd2d 1

(1972)

Addiuonally, we recognize, as did the

Court of Criminal Appeals, that Alien v

State, 414 So.2d 163 (Ala Cr App 1982), most

recenUy resolved this usue adversely to the

petitioner See also Lopez v State, 415

So2d 1204, 1209 (Ala Cr App 1982)

ill

Petitioner's next contenuon is that be

was dened an imparual jury as guaranteed

by the United States and Alabama Const-

tutions The contention is besed on two

grounds (1) Two veniremen were excused

for cause due to their opposition to capital

punishment, in contradiction of the holding

of United States v. Witherspoon, 391 US.

$10, 8 SC. 1770, DW LEd 2d 776 (1968),

(2) The prosecutor improperly secured «

“promise” from the jury during voir dire

that they would sentence the defendant to

death if guilt was shown. We reject thus

contention whether based on either ground

(3) In Witherspoon the Supreme Court

held: “{A] sentence of death cannot be

carned out if the jury that imposed or

recommended it was chosen by excluding

veniremen for cause simply because they

voiced genera! objections to the death pen-

alty or expressed consaentious or relignous

scruples against its inflicuon” Jd, at 522,

8 SCi at 1777 Thy position was reaf-

firmed in Davis v. Georgia, 429 US. 122, 97

S.Ct 399, 3 LEd2d 839 (1972) Conse-

quently, no venireman may be removed for

cause unless it is determined that hu views

as lo capital punishment are so strong that

he “would automatically refuse to impose 8

death sentence regardless of the evidence

produced” Liddell v State, 287 Ala 299,

251 So.2d 601, 610 (1971)

The petitioner challenges the removal of

veniremen Daisy Cannon and Sim McCas

son. Regarding prospective juror Cannon

the record reflects the following

“MK WATKINS (Prosecutor) Yes,

sir. Lads and GenUemen, the Judge

bas already qualified you on capital pun-

whment, but | would hke to go ino it 8

little bit further to make sure thal we

understand each other

“This case thal we are going to try is

one of Ube cases enumerated in Une slat

ule Unal says thal @ person may receive

deat if you find him guilty of a certain

offense, and, | want to know if we all

understand each other, that each of you

are telling me individually, that if you

beleve beyond « reasonable doubt and to

& moral certainty the necessary siemens

to return « verdict, which would mean

Unat ths person would be put to death by

electrocution, that you would be able to

do that’? Is that what everybody » tell-

ing me” Is Lnere anybody that would not

be able to do that?

“PJ. 1 don't beheve | would.

“THE COURT: All night; would you

please stand up and give your name,

please ma'am’

“PJ CANNON: Daisy Cannon And, !

just don't beleve | could send anyone to

Une electric chair.

“Mr. WATKINS. [Prosecutor]: Mn

Cannon, are you telling tbe Court that no

matter what the evidence is; that if you

1256 Als

believe beyond a reasonable doubt and to

& moral certainty that this person did it;

that if we follow Une statule to show that

we can prove al/ the necessary elements,

that you would not be able to Vote guilty

if it meant that be would be sent to

death’

“PJ CANNON I don’t think | would”

Prospective juror McCasson’s comments

may also be found in the record

“THE COURT. In this case, the State

of Alabama, if the defendant is found

guilty of the charge in the indictment

bas widicated they plan t ask for the

death penalty if the defendant is found

guilly beyond & reasonable doubt as

charged Now, w there anyone on the

jury pane! that has « fixed opinion

agunst capita! punishment’? In other

words, does anyone have a strong feeling.

& fixed opinion, against capital punish-

ment’ If so, | would like to see a show

of hands

“Yessir Mr McCasson You have an

Opimon against capital punishment’

“PS McCasson Yes, sir

“THE COURT And, yew do not fee!

that you would be able to return a verdict

sentencing someone to the electric chair

if Uney were found guilty beyond a rea-

sonanie doubt and to » moral certainty of

the crime of the charges, & Uthat correct’

“PJ MeCASSON: My opinion about it,

1 thunk it should be some other way with-

out taking a life for a life.

“THE COURT: All right; I ander.

stand and | respect that, ar | am just

trying to ascertain each one of your opin-

tonsa = 5So, it ws your view thal you have a

fixed opinion against capita) punwhmeat’

“PJ McCasson Yes, sir

“THE COURT No matter what the

evidence would be in a case you would

Bot be able to vote for capital punish-

ment’

“FJ McCASSON Yes, ar”

4) The court finds « difficult to envi

tion how either prospective juror could have

been more explicit in expressing an unqual)-

fed opposition to the death penalty Ac-

435 SOUTHERN REPORTER, 24 SERIES

grespective jurere Connen ond MeComen |

were properly removed for cause. .

The second facet of voir dire with which

peliloner takes maue, tbe prosecutor's ques-

tuoning, may also be found in the record

“MR WATKINS It is my uader-

standing from you Uthat we al] understand

that the State has the burden of proving

to you beyond a reasonable doubt and to

& mora! certainty, that this man is guilty

as charged I'm asking you t go one

sip further in assuming thal the State

of Alabama proves to you beyond a rea-

sonable doubt and to a moral certainty

that this man ws guilty of the capital

offense as charged, will al) of you prom-

me lo me thal you will be about [sic] to

returo 8 verdict Uhat will place him in the

electric chau and cause his death’? Ev-

erybody, search your conscience now and

answer it honestly because that's all we

want to know is what you are Ubinking

and how you feel Would each of you tell

me that if | prowe to you, the State

proves lo you beyond a reasonable doubt

and to & moral certainty that this man is

guilty as charged of « capital offense,

that you will be able to vote for the death

penalty?

“MR WATKINS: I take it by your

silence that you all will.

“Thank you That's all”

Petiuoner argues that this line of ques

Uoning amounted lo a promuec, between the

prosecutor and the jury, to retura 8 sep-

tence of death if the defendant was shown

to be guilty We canaot agree.

[5] Concededly, this question does con-

tain Use word “promize” However, this

word must be considered in its full coatext

Most importantly, the phrase “will De able”

indicates Una! Une prosecutor w aot looking

for « commitment from the jurors, but

rether simply seeking to ascertasn whether

the jury has the capacity wo fulfill us duty

ln our new. Unw lime of questapning ® prop

cordingly, under Witherspoon and Liddell oo

EX PARTE DOBARD Ala 1357

(Cte os 436 b02e 135! (Am 1883)

IV.

Petitioner's fourth contenton is that the

impasilion of the death sentence in Uhus case

constitutes crue! and unusual punwhment in

violation of the Eighth and Fourteenth

Amendments to the United Stales Constitu-

ton We cannot agree

The petuuoner concedes thal the desth

sentence w Ol per se unconstituuonal, but

nevertheless argues Uhal a sentence of

death im the imstant case w inconsistent

With Use holding of Enmund v. Flonda, —

US ——, 1 SCt S36s, 73 L Ed 2d 1160

(1982)

In Enmund the Supreme Court held that

the Eighth Amendment prohibited the im-

position of the death sentence upon a de-

fendant who axed and abetted im the com-

mission of a robbery, in Une course of which

& murder was committed, but where no

evidence was offered to show that the de-

fendant actually killed or intended wo kill

anyone Jd, at 3377

[6} In an attempt to square the facts in

the case af bar with those presented in

Enmund, peuuoner argues « collage of

facts not mentioned by the Court of Crim:

na! Appeals We note that in doing so,

petitioner ha failed to comply with the

provision of ARAP S&k) which provides in

pertinent part

facts its opimwon on rehearing If the

copy Ue slalement uw tbe

Ube

facts set out by the Court of Criminal Ap

peals ARAP, 8&%k).

[7] Overwhelming evidence of record

shows that Dobard pulled the trigger, firing

the shots that killed Officer Sudduth. Con-

sequently, we find no merit to petitioner's

contenuon that Enmund v. Florida, —

US ——, 102 S.Ct 8366, 73 LEd 2d 1140

(1982), preeludes imposition of the death

penalty in thus case

[8] We also reject petitioner's argument

regarding disproportionate sentencing, as

Une peutioner clearly bears more culpability

than hw accomplice, Kennedy Lockett v

Obio, 43% US 586, 605, 98 S.Ct 2954, 2965,

57 LEd 2d 973 (1978), Beck v State, 396

So 2d 645, 664 (1981)

was already charged in the indictment

Under the doctrine of Keller v. State, 380

So2d 926, 937 (Ala Cr App), cert denied,

380 So.2d WSs (Ala 1980), argues petitioner,

committed for the purpose of avoiding or

prevenung « lawful arrest, and, (2) The

capital felony wascommitted while the de

fendant was engaged in flight after com

milling « robbery

We noted in Beck v. State, 996 Sod at

“In Alabama, the aggravating cireum-

stances constitute an element of the cap:

tal offense and are required to be ‘aver-

1358 Alu

offcnse by § 13-11-2a) In addition, ine

State would be permitted to offer evi

dence of any other aggravaling arcum-

slance contained in § 13-11-46, which was

pot ‘averred in tbe indictment’ but which

was proved beyond s reasonable doubt at

tmal or by the evidence taken at the

sentencing bearing as

The doctrine of Keller v. State, 340 So.2d

926, w not applicable, as alleged, in the

instant case. Therefore, we reject petition-

er's argument in this regard

Additionally, petitioner asserts thal the

State fell short of showing Unal the mutder

was committed while tne defendant was

engaged in flight after committing a rob

ber) We do not agree

[9,10] The State must prove aggravat-

ing arcumstances “beyond & reasonable

doubt” Beck v. State, 896 So2d at 665

We find that the State proffered sufficsent

evidence lo meet thu burden Testimony

indicated Unal the petivoner robbed O'Jum's

restaurant and Uben drove at high speeds

for some thirty miles Offer Sudduth's

lights were flashing when be detained pec -

toner Officer Sudduth was shot shortly

after approaching tbe window of Dobard’s

vehicle

{11} Petitioner insusts that the trial

judge and jury failed to conser nonstatu-

“So those are the miligauing arcum-

stances that the law of Alabama provides

In addition © milugsling arcumstances

that | just read to you, you may also

435 SOUTHERN REPORTER, 24 SERIES

consider as a milgaling circumstance any

aspect cf the defendant's character, bis

life, and any of the circumstances of the.

capital offense which tend Ww indicate

Unat the defendant should not be sen-

tenced to death Mitigating arcum-

stance does not have 40 be included on

the lust that | have read to you in order

for you Wo consider it. Mitugating arcum-

stances considered by you should be based

on the evidence that you have heard

And if you are satisfied from the evi-

dence presented during the guilt stage of

the tral or during Uhe sentencing hear-

ing, that @ miligaling circumstance exists

in Unw case then you should consider it

Miugating circumstance necd not be

proven lo you—teed merely be proven to

your satusfaction It does not have to be

proven beyond a reasonable doubt for you

to consider it Only an aggravating cir-

cumstance has lo be proven beyond s

reasonable doubt and that burden is on

the State.”

[12] The fact that nonstatulory mitigat-

ing circumstances were pot listed in the

sentencing report w by no means conclusive

that they were not considered In light of

instructions given to the jury, it s clear

t they were in fact considered

throughout the state are being pun-

i capitally, see Magwood v. State, 426

24 92 (Ala CrApp.1962),; Owen v.

te, 418 So2d 214 (Ala Cr_App 1962),

thins v. State, 09 So2d 1 (Ala Cr.

App 1981), and, (3) The sentence of death s

appropriate when consdered with the role

and sentence of his accomplice Jeanctic

Kennedy Accordingly, imposition of the

death penalty was not error, Gregg v.

Georgia, 428 US 153, 198, 96 SCr 2009,

2934, 49 L.Ed 2d 859 (1976); Beck +. State,

396 So.2d at 664

Vv.

The fifth issue ramed is whether the in-

diciment sulfiesenUy charges Une petiuoner

EX PARTE DOBARD

Alan 1359

(Cite os 625 $0.26 128) (Am 1883)

with a capital felony. The petitioner eon-

tends that the indictment is deficrent as it

fails to aver any aggravating circumstances

enumerated in § 13A-5-85, Code 1975

(13,14) This sve may be resolved by

turning to the guidance of Kyzer v. State,

399 Su2d BO (Ala. 19%2) Kyser made it

clear Uhat the gravamen of a capital offense

is an “intentional killing” Id, at 335. In

order for Une death sentence \o be imposed,

however, an intentional killing with aggra-

vation must be shown Beck v. Stale, 396

So2d 645 (Ala 1980) Herein bes Une du

Uncuion between the related concepts of

aggravation and aggravating arcumstaoc-

es «6 The «capital offenses set forth in

§ 13A-5-31] contain an “intentional Lill-

ing.” Une gravamen, and aggravation Both

must be averred in Ube complaint Jd, at

663. The aggravating arcumstances listed

is § 13A-5-85 are those considered during

the sentencing bearing mandated by Beck

This conclusion parallels that in Ayzer,

in the first degree wherein two or more

human beings are iwlentonally killed,’

and if Ube jury, after a bearing conducted

im accordance wilh Ube prinapies set out

in Beck, fixes Une penalty at death, the

tra! judge, if convinced Unal the ‘aggre

vation’ averred in the indiciment ‘thai

two or more buman beings were inleo-

tonally killed by Une defendant by one or

a series of acts’ outweighs the mitigating

circumstances, may impose a sentence of

death by setung forth in wrung, as re

quired by § 13-11-4, bus findings, even

Unough Ube ‘aggravaliog carcumrtance’ ws

pot ‘enumerated ia § 13-11-4' The jury

could make the same finding at its seo-

ence bearigg mandated by Beck.”

Kyser, 9 So2d at Sis

The indictment charging the petiloner

reads as follows

“Percy Leo Dobard did, unlawfully

and with malice aforethought imtentional-

ly cause the death of another person,

Cariton Wayne Sudduth, by shooting him

with a pistol, while the said Carfton

Wayne Sudduth was « police officer on

duty as a Livingston University Security

Police Officer under the provisions of Ti

Ue 16-63-12, Code of Alabama, 1975 in

violation of 13A-6-81 of the Code of Ala-

bama against the peace and dignity of

the State of Alabama”

{15} We find Unat thus indictment avers

both the gravamen of a capita! offense, and

the required aggravation, “while said Cari-

ton Wayne Sudduth was a police officer on

duty”

The tna! court properly denied petition-

er's motion tw dwmus and overruled his

demurrer to the indictment

(16, 17] The fina! msue rawed w whether

the State's closing argument impermusibly

commented upon the peuuoner’s failure to

take the stand The disputed comments

read as follows

“There w no evidence before you that

could give you any reason why you could

think Uhat Jeanette Kennedy shot Officer

Sudduth as opposed to Mr Dobard The

evidence ws very clear As far as | can

see, and it is undisputed, that Percy Do

bard shot and killed Officer Wayne Sud-

duth”

“[Whhere Ubere w the possibility thal a

by Une jury as reference to failure of the

defendant to testify, § 6 (Const of Ala of

1901) is violaied” Beecher v. Siate, 4

Ala 674, 682, 82) So2d 727, TH (1975).

Additionally, we noted in Beecher:

Une right to point this out to the jury. In

that arcumstance the prosecutor could

say. ‘There has been no refutation of any

of the evidence presented by Une Biate;’

or more simply, ‘The Biate's evidence

stands uncogtradieted,’ or other appropn-

ale comment Wo hike effect.” Jd

We hold that the prosecutor's comments in

questuca couks pot have been understood as

being a reference to the defendant's failure

to testify, but rather fall squarely within

the approved bounds of Beecher. Conse-

1360 Als

quenuy, the petitioner's

nghts were not violated

For the foregoing reasons the judgment

of tne Court of Criminal Appeals is due to

be and is hereby affurmed

AFFIRMED

cons tu ena!

TORBERT, CJ, and MADDOX,

FAULKNER, JONES, ALMON, SHORES,

BEATTY and ADAMS, JJ., concur

STATE

5 Div. 659

Court of Criminal Appeals of Alabama

Nov 2&3, 1982

Rebearing Denied Dec 2, 1962

Defendant was convicted before

Tallapousa Circuit Court, of possession

methaqualone, and sbe —, hs =

Court of Crimina) Appeals, DeCarlo, J

that

cerning drug problems were permissible,

(3) defendant's ngbts were pot prejudiced

by refuses! to hold a bearing on motion of

former jeopardy, and (4) conviction for

trafficinng in marijuana will not bar s sub

sequent prosecutions for possession of meth-

aquaione where both offenses arwe from

Ube same circumstances

Affirmed.

Reversed, Ala, 435 So.2d 1365, on re

mand, Ala Cr App, 435 So.2d 1367

435 SOUTHERN REPORTER, 24 SERIES

L. Gearches and Seizures = 7(36)

Automobile passenger had no standing -

to challenge search of the vehicle where she -

asserted neither a proprelory por possesso-

Ty interest in Ube vebicie and no interest in

cosmetic bag found under seat which she

occupied

2 Drugs and Narcotics 117

Prima face case of possession of a pro

hibited drug or substance must show con-

siruclive possession by the accused of a

controlled substance plus knowledge on his

part of the presence of the narcot. Code

1975, @ 2-70

2 Drugs and Narcotics 117

Constructive possession of s narcotic

requires proof beyond a reasonable doubt

that defendant had knowledge of the drug's

presence, which may be established by sur

rounding facts and circumstances Code

1975, 2-2-70

& Drugs and Narcotics 62, 114

Mere presence in an aulomotule where

best drugs are found will pot support «

conviction for possession, however, unlaw-

ful possession may be inferred when pres

ence « coupled with existence of additional

evidentary factors, and defendant's prox-

aihy 2 Ore Dah aneenatiny Some:

Code 1975, 80-2-70. ‘

1338 Ale

Percy Lee DOBARD

wast

STATE.

2 Div. 306.

Court of Criminal Appeals of Alabama.

Court, Mareage Couaty, Claud D. Neilson,

4., af murder of police officer while on duty

ing Une Urial did not prejudice defendant;

(2) two jurors who expressed a refusal to

return @ guilty verdict if it meant the impo

(3) wumposiuea of

death penalty on defendant was not cruel

and ususual punishment; (4) indictment

was not required to set forth aggravating

Greumstances; (5) tnal judge was not

shown to have failed to consider nonstatu-

tory mulugatng factor). and (6) prosecutor

did not improperly comment on defendant's

failure to testify

Affirmed.

Judgment affirmed, Ala, 435 So2d

135L

L Criminal Law o 656

Imsue was not whether exposure lo me

dia coverage improperly influenced aay

member of the jury but whether it might

have unduly affected any juror to act out-

mde the evidence is arriving at a verdict

2 Criminal Law 866

Jury's exposure to media coverage of

assasunalion attempt oa the life of the

President of the United States, which oc-

curred during trial of the case, did not

deprive defendant of his right to a fair

uial

435 SOUTHERN REPORTER, 24 SERIES

3% Jury @ 33(13, 61)

Record did ‘not support defendast’,

claim of systematic striking of blacks

young blacks from petit juries or history

purposeful discriminaion againet a parucs

lar_race.

4 Jeary @ 108

Prospective juror who indicated thy

she would not be able te return a guilty

verdict if it meant the imposition of the

death penalty and prospective juror whe

indicated that he tmd « “fixed opinics

against capital punishment regardless of

what the evidence might be were property

challenged for cause.

& Jury @ 131(17)

Questions asked of jurors on voir dire

aa to whether, if they believed beyond «

reasonable dowbt and to 8 moral certainty

that the necessary elements had been prov.

en, they would returpm verdict which would

put Une defendant te deals by electrocuuoce

and which asked the jurors if they would be

able to vote for Une death penalty did ox

improperty elicit from the jurors the prom

ise lo impose the death penalty uf defendant

was found guilty.

& Criminal Law @ 1213

Impomtion of death penalty upon de

fendant who was shown Wo have shot polwe

officer shortly after baving commitied 4

robbery was sot cruel and unusual punal

ment USCA. ConstAmend 8, Code

1975, § 13A-531(a45) (Repealed)

7. Homicide @ 154

Evidence that defendant committed 4

robbery, that the sulomobile which he was

driving was stopped some 30 miles from the

robbery scene, and that defendant shot po

lice officer was sufficent to sustain finding

that the homicide occurred “in Might after

commutting a robbery,” an aggravating cit

cumstance justifying imposition of (be

death penalty.

& Homicide = 164

Death penalty is appropriate puns?

ment for the murder of a police gfficer

DOBARD +. STATE

Ale 1339

Ck as 428 Sade 1138 (Am Cr App | BET)

9. Criminal Law 963

la veew of evidence that it was defend

ant, and not bis female companion, who

shot the police officer, death penalty im-

posed upon defendant was oot excemive

whes compared with the 2-year sentence

received by his companon.

1@ Criminal Law 114415

It would be assumed that jury followed

trial court's instructions with respect to

conmderayoa of milgaling circumstances

when considering penalty Lo be impesed for

hom rade.

IL Criminal Law = 966.2(1)

Padure of tral judge to speafically

conmder them in sentencing defendant

12 Indictmen( aad Information 113

Aggravaling curcumstances which may

lead to umposiuoe of death penalty are sot

& secessary and elementary part of the

offense and are not required to be set forth

in Une indsctmest.

1h Crimical Law @721(5)

Aluwugt defendant and bs [emale

companwoo were \be only persons who could

testuly to Lhe events surrounding Lhe shoot

ing of victum, prosecutor's closing argument

that Ubere was no evidence before Une jur-

ors whuch would lead them to believe that

defendant's companion had shot the police

~ officer and Unat the evidence was undispul-

ed that defendant had shot and killed the

poleoe officer was not aa impermissible com-

ment on defendant's fulure we testify

14 Criminal Law @ 11715

Where there has been a direct comment

by Une State on the defendant's failure to

testify and the inal court has not acted

prompily te cure (hat improper comment,

Une coavicloa must be reversed.

1S Criminal Law © 721(5)

Where the State's evidence stands un-

contradicted, prosecutor has a mght lo pont

that out lo the jury

Dand A Red, Livingston, for appeilaat

Charles A. Graddick, Atty. Gen, and Ed-

ward E Carnes, Asst. Atty. Gen, and J.

Anthony McLain and James F. Hampton,

Sp Asst. Attys Gea, for appellee.

BARRON, Judge j

Appellant was convicted under § 13A-5-

31(aX5), Code 1975, for the murder of a

police officer while on duty. After a sepa-

rate hearing on aggravaling aad mitigating

circumstances, the jury fized hw punish-

ment at death Subsequently, the trial

court wenghed the aggravaling and mitigal-

ing curcumstacces pursuant to § 134-533,

Code 1975, and sentenced appellant to

death. The court issued bath oral aad writ-

ten findings of fact from ihe tral and the

sentence heamng which enumerated the ag-

gravaling circumstances the court found

sulficxent lo support Une sentence of death

Thu appeal followed

Some ume between 5.00 am. and 6:00

am on Saturday, June 21, 1980, O'Jim's

Restaurant in Evlaw, Alabama was robbed

by appellant and « female compania, Jean

ette Kennedy. After Kennedy left the res

taurast, appellant pulled a puwtol om wait-

ress Corethea Hitton ond demanded “give

me all your money.” Ma Hittoe complied

with the demand Appeilant and Kennedy

speedidy fed, and Ma Hittee called the

Eutaw Police.

About 35 miles from the scene of the

robbery, appellant, who was driving the

getaway vehicle, was spotted by Livingston

University Police Officer Wayne Sudduth,

who was asesling im the search for the

suspects. Officer Sudduth was aware that

the robbery had occurred and apparently

had knowledge of the descriptioa of the

getaway veb.cle from « pole radio broad

caal

Officer Sudduth informed Livingstoa Po

hee Officer Raymond Burne that he was

stopping the vehicle. Officer Sudduth, who

was dressed in a bive uniform, was driving

& marked polwe car. '

With hus Mashiag lights on, Officer Sud-

duth stopped the vehicle which contained

1340 Ale

appellant and Kennedy. He approached

tbe driver's side of the car and asked for

appellant's driver's leense Appellant

opened tbe car door and reached around as

if to get his billfold However, according to

the testimony of witness Kennedy, rather

than removing hus billfoid he grabbed a 3%

caliber revolver and shot Officer Sudduth,

killing him The evidence indicated that

Officer Sudduth did not have hus service

revolver drawn, as it was found in his bol-

ster with Une safety strap in place

After tbe shooting of Officer Sudduth,

appellant and Kennedy sped away, only to

wreck their vehicle on the western edge of

Livingston Both exited the car and

walked up the road where Uney hid in some

bushes unta @ truck driven by Mr Johnny

Mathews approached Mathews caw appel-

lant come from under a bridge and ect as if

he were injured Mathews stated that ap

pellant was yelling for help and he stopped

bus truck on the side of Une road) When

appellant came within close proximly of

the truck, he pulled the revolver, pointed it

at Mathew's face and demanded tbe keys lo

the truck. After 8 bref perod of ume,

dunng which Sumter County Deputy Sher-

iff Ralph Rainey drove past appellant, Ken-

nedy, and Mathews, appellant secured the

keys and fied with Kennedy

Deputy Rainey reported what be had

seen to the Liviagston Police Department

and was informed Unal he had observed tne

restaurant robbery suspecta Deputy Ra-

bey set @ roadblock and while moving hu

patrol car Wo allow a vehicle lo pass, appel-

lant drove Mathew's truck past him A

high speed chase ensued involving several

vebicles

Another roadblock had been set by York

@ty pobee officers about halfway between

Livingston and York As the truck ap

proached, the officers at the roadblock be-

gen w fire ot & = immeditely thereafter,

Une Uruch wrecked and overturned Sule

quently, Deputy Reimey ao appetiant

throw s gun out of the truck cab Deputy

Rainey ummedstely retneved 1 Appellant

and Kennedy were tghen mic custely.

Wwensporied We 0 loca) humpiia! for examine

435 SOUTHERN REPORTER, 24 SERIES

aon, and afterwards taken to Sumter Coun-

ty Jail

Several sues arc presented for review.

Appellant contends that the jury's expo

sure Wo the media coverage of Lhe assassina-

ton allempt on the life of the President of

the United States, which attempt occurred

during the trial of the case, was prejudicial

lo appellant's due process and equa) protec-

Won guaranteds and hus right to « fair trial

Appellant urges that the tna! court erred to

& reversal in denying the motion for « new

tna! on this ground

[1] The waue, of course, s ool whether

Une exposure lo the media cov. age improp-

erly influenced any member of Ube jury, but

whether it might have unduly affected any

juror W act outside the evidence in arriving

ata verdict Seekers v. State, 8 Ala App.

#0, 4 So.2d 62% (1949)

{2} The guilt phase of the tna! was be

gun on March 30, 1961, and was concluded

March 31, 1981 The sentencing phase was

held on the succeeding day, April 1, 1961.

The presidential assassination attempt oc-

curred on March 30, 1961, the firs: day of

the tral

Al the conclusion of the sentencing phase

and afver the jury had returned its verdict,

appellant requested a polling of the jury to

determine whether the jurors had been per-

Mitled to watch television coverage of the

assassination allempt or to read newspaper

articles about it. The tria) court denied the

jury polling request but stated for the rec-

Appellant relies heavily on Seekers, su-

pra, in furtherance of his position Seekers

between the plot of that movie and the

evidence presented wm Uhe case the jury was

then hearing One of the affidavits im the

motion for a new inal in Seekers alluded te

Une mmulanves a foltows

DOBARD +. STATE

(Che as 488 Badd 128 (ARC Age 198T)

“_.. The portrayals of death and suffer-

ing ip Whe picture were such thal it would

have been most difficult for the jurors

Bol to amociale Ube scenes in the show

With Une Lestimony ip the case The two

trals in which the defendants were coo-

victed in the show were quile vividly

portrayed and the verdicts rendered

agwns! Ube defendants could hardly have

failed to impress Ube minds of the jurors

to the prejudice of tbe defendast ”

In Une case at bar, Unere are no indications

of any emilariues between matters in the

news reports and any of the evidence being

considered by Une jury

The sews reports obviously contained no

commenation, informauen, opinion, or

other discussion of any facet of appellant's

inal which would tend W affect the ull-

male decusion in the instant case

We cannot say that the jury's viewing

televumon mews reports of the atiempted

assassination of the President might have

unduly influenced any member of tbe jury

to act oulside Ube scope of the evidence

presented in thu trial CansequenUy, we

find mo error in Une trial court's ruling ia

Unal regard

(3) Appellant argued in hu moon for a

new tral thal the Stale umpermumbly used

| peremptory stnkes in an unconstiluLon-

al, racsally biased manner lo remove blacks

from the venire

Appellant » black and the welim was

white. Appwilast's jury congsted of seven

blacks aad five whites.

Al Une bearing on the motion for a new

(nal, appellant offered proof that the State

used is peremptory sinkes lo remove twen-

ty blacks, ranging in age from 21 to &

years, from the venire. Appellant also

identified the struck jury by mame, race,

and age No evidence on this issue was

offered by the Suste

Appellant reles heavily on Swain v..Ala-

bama, 330 US 202, 85 S.Ct 824, 13 L.Ed 2d

758, reb den 381 US 921,85 SC. 1528, 4

LEd2d 442 (1965) The thrust of appei-

purposeful duseruminavon against a parucu-

lar race. Swain, at 380 US. 221, at 85 SC.

836, provided, “"[W]e cannot bold thal the

striking of Negroes in a particular case iw 8

denial of equal protection of the laws”

Therefore, we do mot think appellant has

carned the burden of proof which Swain

requires

Additionally, thus court recently decided

Une peremptory challenge weve, coatrary to

appellant's argument, im Allen v. State, 414

So2d 163 (Ala Cr. App. 1982).

The tna! court's ruling on ths sue was

correct.

ill

Appellant comtends thal he was unconsl-

tuonally depnved of an umpartial jury in

that (a) (wo members of the venire were

standard set oul in Witherspooe vy. Iilinou,

aiready qualified you on capital panmb-

litte bit further to make sure that we

®latute Unal says thal «@ person may

receive death if you fied him guilty of

a certain offense; and, | want to know

1342 Ale

if we al! understand each other, that

each of you are telling me individually,

that if you belheve beyond a reasonable

doubt and to a moral certainty the nec-

essary elements to return a verdict,

which would mean that this person

would be put to death by electrocution,

that you would be able to do that’ Is

that what everybody is telling me’? Is

there anybody that would not be able

to do that?

“PJ 1 don't beheve | would

“THE COURT: All nght; would you

please sland up and give your name,

please ma'am’

“PJ CANNON Daisy Cannon And, |

just don't believe I could send anyone

to the electrnc chair

“MR WATKINS [Prosecutor] Mr Can-

pon, are you telling the Court that no

matter wha! the evidence is; that if

you beleve beyond @ reasonable doubt

and lo & mora! certainty Unal this per-

son did it; that if we foliow the statute

to show that we can prove all the nec-

emary elements, that you would not be

able to vote guilty if 1 meant that he

would be sent to death’ «

“PJ CANNON: I don’t think 1 would”

And as to prospective juror McCasson,

the record shows (R. 279-280)

“THE COURT: In this case, the State of

Alabama, if the defendant is found

guilty of the charge in the indictment,

has indicated they plan to ask for the

death penalty if the defendant is found

Guilty beyond a reasonable doubt as

charged. Now, w there anyone on the

jury pane! that has « fixe’ epimon

agunst capital punishment’? Ie other

words, does anyone have « strong fee!-

ing, & fixed opinion, against capital

punishment’ If so, 1 would like to see

a show of hands

“Yes sir Mr. McCasson You have

€n opinion against capital punishment’

“PJ McCASSON: Yes, wr

“THE COURT: And, you do not feel that

you would be able to return a verdict

sentencing someone Ww the electric

chair if they were found guilty beyond

435 SOUTHERN REPORTER, 24 SERIES

a reasonable doubt and to a moral cer-

tainiy of the crime of the charges; is

that correct?

“PJ McCASSON: My opinion about it, |

think it should be some other way with-

out taking « life for a life.

“THE COURT: Ali right; | understand

and | respect that, air. | am just try-

ing to ascertain each one of your opin-

ions. So, it is your view that you have

a fixed opunion against capita) punish-

ment’

“PJ McCASSON: Yes air.

“THE COURT: No matter what the evi-

dence would be in & case you would not

be able to vote for capital punishment’?

“PJ McCASSON® Yes, sir.”

[4] We decm it emphatically clear from

the record that both potential jurors were

80 opposed to capita) punishment thal they

would not be able to vote for the death

penalty mo matter what the evidence

showed. Prospective juror Cannon indi-

cated that she would not be able to return s

guilty verdict if it meant the imposition of

the death penalty Prospective juror

McCasson indicated that he had a fixed

opinion against capital pymishment regard-

less of what the evidence might be. As we

two prospective jurors im question were

properly excused for valid reasons.

DOBARD v. STATE

Al 1343

Chte wp 435 Badd 1538 (Am Cr App 1882)

Appellant complains that two of the

State's jury voir dire questions were tanta-

mount lo eliciting a promuwe from each pro-

spective juror to impose the death penalty

if appellant was found guilty. The State

contends that, though possibly inartfully

phrased, the questions were designed to de-

termine whether any venire member's oppo-

milion to capital punsshment was such that

it would prevent him or ber from returning

a guilly verdict in the face of adequate

proof of the necessary elements of the of-

fense

The first question to which appellant

takes excepuon w the voir dire question to

which prospective juror Cannon responded,

hereinabove discussed

The question essentially is: Are each of

you telling me that if you believe beyond a

reasonable doubt and to s moral certainty

that the necessary elements have been

proven, you would return a verdict which

would pul Unis person to death by electrocu-

tion’?

[5] It w obvious the question relates to

the guilt stage verdict because it refers to

“Ube mocemsary elements” in its text Cer-

tainly, prospective juror Cannon interpreted

the question as relauing to the guilt phase

because of the manner in which she re

sponded. The trial court, in a follow-up

question referred to “the necessary ele-

guilt phase of the trial. Additionally, when

the question is viewed in context with the

entire vow dire on this matter, the

“would be able” refers to the ability to keep

an open mind on the subject, as opposed to

having s fixed opinion which would require

an acquittal, regardiess of the evidence, in

order to avoid the death penalty Wi ther-

Appellant's counsel did not take excep

tion to the question at the time, nor did be

seek to determine, through clarifying ques

tuons, how the venire may have interpreted

the question. We mote, however, that coun-

sel was permitied to and did examine the

venire members extensively, including de

terminauon of religous preferences and po-

liuca) affiliations

as follows (R 280-281):

“MR WATKINS [Prosecutor}): Ladies

and Gentlemen, the Judge bas already

told you that this is a case wherein

there may be a verdict of death by

electrocution, and, all of you have said

that you believe in capital punighmeat,

except for this one gentleman Now, |

want you to search your conscience and

let's really talk about this thing before

we go too far. It is my understanding

from you that we all understand that

Ube State has the burden of proving to

you beyond a reasonable doubt and to 8

mora! certainty, that this man is guilty

as charged I'm asking you to go one

capital offense as charged, will all of

1344 Als

find Uthat the inquiry was not « solicitauion

of a promise to return a capital punishment

verdict. When considered in context, thu

question again sought s determination of

whether any venire member would be un-

able to vote for the death penalty due a

fixed opinion on the iasue of capita! punish-

ment As above, we perceive thal this in-

quiry is well within the framework set out

in Witherspoon, supra. Again, it is noted

that appellant's objection went only to the

form of the question. No asttempt was

made by appellant to clarify the intended

purpose of the question in his voir dire

examination This adds credence to the

theory that the interpretation of the pur-

pose of Une question at the time by appel-

lant significantly differs from the argv-

ment he presently advances.

The tra! court's denial of the mouon for

& mustral does not constitute error

(6) Appellant argues that the death

penalty constitutes crue! and unusual pun-

ishment w violation of the Eigbth and

Fourteenth Amendments w the United

States Constitution He concedes that the

prevailing view uw that the death penalty w

Bot per se crue! and unusual punishment,

but urges that the application of it in thu

case is consUtulonally prohibiied We dw

agree with thus contention.

We have reviewed this case in detail in

keeping with our Supreme Court's mandate

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

which ws as follows:

“To insure that sentences of death will

pot be arbitrarily and capriciously im-

posed, we bold thai both the Court of

Criminal Appeals and this Court should

examine all death sentences in light of

the standards and procedure approved in

Gregg (Gregg v. Ga, 48 US 153, %

S.Ct 2909, 49 L.Ed 2d 859 (1976)} Each

death sentence should be reviewed to as

certain whether the crime was in fact one

properly punishable by death, whether

mmilar crimes throughout the state are

being punished capitally and whether the

sentence of death is appropriate in rela-

435 SOUTHERN REPORTER, 24 SERIES

tion to the particular defendant. In mak-

ing this final determinztion, the courts

should examine the penalty imposed upon

the defendant in relation to that imposed

upon his accomplices, if any.” A

The offense with which appellant was

charged and convicted is unquestionably a

capital offense under the provisions of

§ 13A-5-831(aX5), Code 1975. We find that

the evidence was sufficient to meet the

degree of pruof required to sustain 8 convic-

tuon under thal code section.

In reviewing the death sentence deter-

mined by the jury, the tral court found two

aggravating circumstances:

1 The capital felony was committed for

Une purpose of avoiding or preventing

a lawfu! arrest.

2 The capital felony was committed

while the defendant was engaged in

flight after committing a robbery.

Appellant contends that the first aggravat-

ing circumstance essentially duplicates the

offense charged in the indictment and,

therefore, may not be considered an aggra-

vating circumstance in this case, citing Kel-

ler v. Siate, 880 So2d 926 (Ala Crim App

1979), cert. denied, 380 So_2d $38 (Ala 1960)

The rule in Keller, to the effect that the

aggravating arcumstance charged in the

indictment cannot be used as both the crim-

inal charge and the arcumstaace aggraval-

ing that charge, has been tacit!) overruled

in Kyser v. State, 899 So2d $30 (Ala 1961),

and Beek, supra

However, in the case before us, the enu-

Mmerated aggrevaling circumstance of

avoiding or preventing « lawful arrest »

not an integral element of the basic aggra-

veling circumstance alleged in the ipdict-

ment. Therefore, the rule im Keller, even if

it were still intact, would have go applica

ton bere. -

[7] As to the remaining aggravating cr-

cumstance enumerated im the trial court's

order, appellant contends the State failed to

prove he was in fact in flight after ommit-

ag § robbery. : -

The appellant testified at the sentencing

bearing before the trial judge; be did not

DOBARD v. STATE

Als 1345

Cine os 436 Sod 108 (Am App 182)

testify before the jury at either the guilt

phase or sentencing phase of the trial. Al

the sentencing hearing, he admitted having

committed the robbery of O'Jim's Restau-

rant, driving the car from the robbery scene

and being stopped by an officer in s police

car approximately 30 miles from the rob-

bery scene. He testified thal be was ex-

ceeding the speed limit at the time, and

that he was not sure why he was being

stopped by the officer. Other evidence in-

Gcated the vicum stopped appellant within

approximately 30 minutes of the robbery

Appeljant further Uestified that he did not

shoot the police officer, but that it was

Jeanette Kennedy, bs girifmend and com-

panion, who did the shooting Kennedy

testified during the guilt phase of the tna!

that appellant robbed O'Jim's Restaurant

and that be drove from the scence “real

fast.” Kennedy further testified thsi ap

pellant shot the police officer immediately

after the police officer approached the driv-

er's side of the car and asked to see appel-

lant's driver's license

We find that the evidence s sufficent to

justly beyond « reasonable doubt! the tna!

court's findings regarding the “in flight

after committing s robbery” aggravating

arcumstance

The remaining considerauons are wheth-

er pimilar crimes throughout the stale are

being punusbed capitally, and whether the

sentence of death is appropriate in relation

to this particular defendant (appellant)

we answer beth questions in the affirma-

uve.

(8) The death penalty ® appropnale

pumshment for the murder of » police off+

cer, as in this case. The death penalty has

been consultenUy applied im similar cases.

The death penalty was imposed by the Ge

peva County Carcuit Court for the murder

of a sheriff in Cade v. State, 875 So2d 82

{Ala CrApp), affd, 375 So2d 828 (Ala

grounds, 405 So2d 609 (Ala 1961) Also,

the death penalty was imposed by the Cof-

1. The tral judge's order seting the penalty =

fee County Cireuit Court for the murder of

a sheriff in Magwood v. State, 426 802d

918 (Ala Cr App.1962) Bee also Daniel v.

State (Ma 4 Div. 987, April 20, 1982) ——

So2d —— (Ala Cr.App.1962).

{9} Appellant argues that Jeanette Ken-

nedy, appellant's girifnend and companion,

was an accomplice and that her sentence of

@ years (on ber guilty plea) is so substan-

ually out of line with appeliant’s death

sentence as lo require reversal under the

provisions of Beck We do sot agree with

appellant's position Appellant argues is

bref that it was Kennedy, not appellant,

who “gunned down Officer Sudduth,” and

Unat she got only 20 years for the murder of

& police officer, The jury and trial court

judge beard Une Lesumony aad cross-e1am-

nation of Kennedy and were in a positon to

observe ber demeanor and form conclumons

as to her credibility; the tral court judge

beard the testimony of appellant (at tbe

sentencing hearing) and be was in the best

posiuion to judge appellant's credibility.

From the qvociusions reached by the jury

and the trial court judge, which we find to

be adequately substantiated by the evi-

dence, appellant shot the police officer.

Tbe jury and tna! court judge were well

Within their prerogatives im so finding. 11

poled from the testimony thai 4 was

appellant who initially procured the gun,

who pulled the gun im the restaurant rob-

tery, who had the gus during the taking of

& peckup truck after he wrecked his vehicle,

aad who threw the gun out of the wrecked .

packup truck after it wag wrecked. Incum .

mary, all of the factors in this case con

sidered, appellant's death sentence is not

excessive when a@ompared to the @-year

costonce received by bis girifriced ead om

panioa, Jeanette Kennedy.

As to the mitigating circumstances, the

“Order of Court Sentencing Defendant to

Death”! states:

“The court finds that the following miti-

. galing circumstance enumerpied ia Sec

_ ton 13-11-17, Code of Algbams 1975, was

berety attached as Appenchx A

1346 Als

present but insufficient to outweigh the

aggTavaling circumstances:

“The Defendant has no significant his

tory of pror criminal activity.”

The appellant contends that the above

order reveals that the trial court considered

only the statutory miligating circumstanc-

@, to the exclusion of any nonstatulory

mitigating circumstances, in viclauon of

Lockett v. Oho, 438 U.S. 586, 98 S.C. 2354,

57 LEd2d 973 (1978), and Beck, supra

Further, appellant contends thal the evi-

dence of nonsiatulory mitigating arcum-

stances Was not weighed by the jury or the

tna! court

Beck provides that the trial court must

permit a defendant to introduce any matter

relating to mitigating circumstances at the

sentencing phase of the tnal Lockett de-

clared unconstitutional an Ohw statute

which precluded the sentencing judge from

considering son-statulory mitigating fac-

tors, such as character, age, lack of specific

intent lo cause death, elc

The trial court allowed appellant to

present testimony at the jury sentencing

hearing from several friends and relatives

concerning appellant's background, life, and

character, The jury sentencing hearing

was held on April 1, 1981, the day after

conclusion of the guilt phase tna!

(10) In bus instructions to the jury, the

una! judge outlined the statutory miligat-

ing carcumsiances, and further instructed

Use jury

“So those are the mitigating arcum-

stances thal the jaw of Alabama provides.

In addiuon to mulgaling carcumstances

that I just read to you, you may also

conmder as a muligaling arcumstance gay

aspect of the defendant's character, ius

life, and any of the circumstances of the

capital offense which tend Ww indicate

that the defendant should not be sen-

tenced to death Mitigating circum-

stance does not have to be included on

the list that | have read to you in order

for you te consider. Mitigating circum-

Blances considered by you should be based

on the evidence that you have beard

dauemuen tenean, eee Pies

in Uus case then you should consider it *

Miuigating circumstance need not be.

proven lo you—need merely be proven to

your satisfaction. It does not have to be

proven beyond a reasonable doubt for you

to consider it. Only an aggravating cir-

reasonable doubt and that burden is on (

the State.” j

The record ws void of any reasons to suspect

thal the jury either disregarded the testi-

mony of appellant's witnesses, or ignored

the tnal court's instructions. :

A crucial assumption underlying the jury

system is that juries will follow the instruc-

Uons given them by the trial judge. Parker

v. Randolph, 442 US €2, 99 S.C 2132,

L.Ed.2d 713 (1979) This leads to the ines

Within the bounds of its prerogative, unani-

Mously found that the aggravating circum-

[11] The failure of the trial judge wo

specifically refer to the ponélalulory mil-

ing circumstances may be interpreted mere-

Bon-tlatulory

DOBARD +. STATE Ais 1347

Cie os G35 Sade 1238 (ARC Age 1982)

ble miligaling arcumstances presented to

them

For these reasons, we reject appellant's

conlenuons regarding non-statulory muli-

galing arcumstances

[12] Appellant attacks the validity of

Une indictment under which be was ined as

being insufficient as a matter of law and as

being Wwlally and fatally defecuve A mo

tuon to dismiss and/or demurrer to the ip-

dictment, which was overruled, raised these

grounds pror Ww arraignment Appellant

urges that @ capital offense indictment

must allege the aggravating circumstances

reed on to elevate a non-capital! offense to

& capital offense, citing § 183A 5-3\/a),

Code 1975

The charging part of the indictmeni ws as

follows

“Percy Leo Dobard did, unlawfully

and with malice aforethough! intenuonal-

ly cause Ube death of another person,

Cariton Wayne Sudduth, by shooung him

with a pistol; while the said Cariton

Wayne Sudduth was « police offmer on

duty as @ Levingston University Security

Police Officer under the provisions of T)-

Ue 16-53-12, Code of Alabama, 1975 in

vnolauion of 13A-5-31 of the Code of Ala-

beams against the pesce and dignity of

the State of Alabama “ .

Becton 1SA-6-81(a), Code 1975, provides:

“(a) If the fury finds the defendant

guilty, it shall fix the punishment at

death when the defendant ws charged by

indictment with any of the following of-

fenses and with aggravation, which must

also be averred im the indictment, and

which offenses so charged with said ag-

grocetion chal ast inctude any lamer of-

fenses.

“(1) Kxdnapping for ransom or at-

tempts thereof, when the vicum is in

teationally killed by the defendant,

“(2) Robbery or stiempts thereof

when the victim s intentionally killed

by the defendant;

“(3) Rape when the victim is inter

tionally killed by the defendant; carnal

knowledge of « girl under 12 year: of

age, or abuse of such girl in an allempt

to have carnal knowledge, when the

victim intentionally killed by the de-

fendant,

“(4) Nighttime burglary of an occu-

pied dwelling when any of the occu-

pants is intentionally killed by the de-

fendant, _

“(5) The murder of any police offi

cer, sheriff, deputy, stale trooper or

peace officer of an, kind, or prison or

jail guard while such prison cr jail

guard » on duty or because of some

official or job-related act or perform-

ance of such offer or guard;

“\6) Any murder commitied while

the defendant = under sentence of life

impreonment,

“(7) Murder uw the first degree when

Une killing was done for « pecuniary or

ether valuable conmderstion or pursu-

ant to contract or for hire;

“(8) Indecent molestation of, or an

atlempt to indecently molest, a child

under the age of 16 years, when the

child victim ws intestionally killed by

the defendant,

“(9) Willful setting off or exploding

“(10) Murder im the first degree

wherein (wo or more human beings are

intentionally killed by the defendant by

one or a series of acts;

“(11) Murder im the first degree

where the victim = 8 public official or

public figure and the murder stems

from or is enused by or related to his

official position, acts or capacity;

“(12) Murder in the first degree com-

mitted while Ube defendant is engaged

~or participating’ in the act of unlawful

ly assuming coatrol of any aircraft by

use of Unrests or force with intent to

——

1348 Ale

obtain any valuable consideration for

the release of said aircraf\ or any pas-

senger or crewman thereon, or to direct

the route or movement of said aircraft,

or otherwue exert control over said

aircraft,

“(13) Any murder committed by a

defendant who has been convicted of

murder in the first or second degree in

Une 20 years preceding the crime, or

“(14) Murder when perpetrated

against any witness subpoenaed to tes-

ufy at any preliminary hearing, trial or

grand jury proceeding against the de-

fendant who kills or procures the kill-

ing of witness, or when perpetrated

against any buman being while intend-

ing to kill such witness.”

Also germane (to the sue here presented

ms § 13A-5-35, Code 1975, which provides

“Aggravating circumstances shall be the

following

“(1) The capital felony was commitied

by @ person wader sentence of jmprison-

ment,

“(2) The defendant was previously con-

vieted of another capital felony or a felo

By imvolving Une use or threat of violence

to Une person,

“(3) The defendant knowingly created

& great mek of death to many persons,

“(4) The capital felony was committed

while the defendant was engaged or was

an sccomplece in Ube eommussion of, of an

ailempt to commit, or fight after com-

mitung, or atlemplung to commit, rape,

— burglary or kidnapping for rap-

~ ep Th exgiiad Satany was commitied

for Une purpose of avoiding or prevenung

s lawful arrest or effecting an escape

from custody;

“(6) The capital (giony was committed

for pecumary gain,

“(7) The capital felony was commitied

to durupt or binder thg lawfu! exercise of

any goveromenta! function or the en-

forcement of laws, or

“(8) The capital felony was especially

heinous, atrocious or cruel. (Acts 1975,

No. 213, § 6; Code 1975, § 13-11-4)"

435 SOUTHERN REPORTER, 24 SERIES

The thrust of appellant's position is that —

“aggravation is such @ mecessary and ele

mentary part of the Death Penalty Act that

the defect of failing to accuse a defendact

of aggravation in an indictment which also

accuses him of one of the offenses enumer-

ated in Titk 13A, Section 13-5-31, Code,

renders such an indictment void.” We do

nol agree

Sdcanthd eabebestentinienmthe

the two separate but related concepts of

“aggravation” and “aggravating circum

stances” contained in the 1975 Act How-

ever, we are convinced thal the § 13A-6-85

aggravating circumstances need pot be

averred in Une indicument

Secuon 1SA-5-31 contains the definition-

a) aggravation required to elevale & Bon-

capital offense. Beck, supra; Kyser, supra

In the present case, the now-<capital offense

of murder of an individual was elevated to

8 capital offense because Une individual was

imtentonally killed while be was a police

offmer on duty. This analogy is in keeping

with the holding in Kyzer, supra, at 338, as

follows.

“Lf a defendant is convicted of ‘murder

in the furst degree wherein two or more

Unough the ‘aggravating arcumstance’ is

pot ‘enumerated ia § 13-11-4' The jury

could make ihe sarne-{mding et ite_sen-

tence heanag mandated by Beck.”

in the present case, the aggravation aver-

red in the incoctment is found in the phrase

“while the said Cariton Wayne Gudduth

was a police officer on duty.” The aggra-

vating crcumslances enumersied in

§ 18A-5-35 are relevant only to the issue

— ae

DOBARD +. STATE

Cire as 435 50.24 1338 (AC: App 1882)

of whether a defendant should be given the

death penalty after having been convicted

of @ capital offense described in § 13A-5-

31. ConsequenUy, we find no error in the

trial court's overruling of appellant's mo-

tion to dismiss and/or demurrer to the in-

dctment

Lasuy, appellant contends that the State,

in its chosing argument to the jury in the

guilt phase of the inal, impermissibly com-

mented on his failure to testify. Appellant

made no objection to the questioned com-

ment and, thus, the possibly need for curs-

tive instructions was sot called to the tral

court's allenton

The State urges that the failure of appel-

lant to imterpose a Umely objection comt-

tuted a waiver, which does nol preserve the

matter for review by the court We dusa-

gree, because the “plain error” rule apples

and we are obligaied to search the record

for prejudicial error

[13] The portion of the State's chomng

argumest of which appellant complains

(R 563)

“There is “no evidence before you that

could give you any reason why you could

think that Jeanette Kennedy shot Office

[sic] Sudduth as opposed to Mr Dobard

The evidence is very clear As far ws !

can eee, and it = undwputed, that Percy

Dobard shot and killed Officer Wayne

Budduth ”

(14) Where there has been « direct com-

ment by the State on the defendant's fail-

wre to testify, and the tral court has not

acted promptly to cure such improper com-

ment, there is no question thal a conricuion

must be reversed because it violates consu-

tutional nghta However, indirect refer-

ences to the defendant's failure to testify

present questions more difficult to resolve

While an secused’s sonstitwuone!) guarse-

lees musi be preserved inviolate, Une State's

prerogative to fairly comment on the evi

dence should pot be unduly restneted

The testimony of witness Kensedy was to

Une effect that appellant reached to get pus

Als.

driver's lense and, instead, drew be gue

and fired Une fats! shots. Upon the concle-

realed

(15) Where the State's evidence does

sland encontradicted, the prosecutor does

Does the manner in which it was

pointed out rise to the level of being an

indirect comment oo tne defendant's failure

to tesuly? We think not

It is undisputed that the only people who

could testify lo the events surrounding the

shooting of Officer Sudduth were appellant

and witness Kennedy. We perceive, how-

ever, that Kennedy may have testified in

appellant's defense, or may have hase ned

Une harshness of ber teslimony to appel-

lant's benefit had appellant called her as bu

witness Alt the time of appellant's trial

ny, it could hardly be said that she was «

captive witness for the Sate. There was

nothing which could have prevented appel-

lant from calling Kennedy as het eitacss in

an effort to have her testify to the “truth”

as be remembered Une facts ’

supra, in Lhal Lhe comment in Beocher was.

“No one took the'stand to deny it”; and in

1350 Als

this case the comment was: “As far os |

can see, and it i unduwputed, that Percy

Dobard shot and killed Officer Wayne Sud-

duth.” It is obvious from the comparison

Unat in Beecher the comment directly called

attention to lack of testimony from “the

stand,” whereas in the case before us no

reference was made to lack of testimony.

The State's comment in this case & prop

erly within the virtual identificalion doo

tnne, which was quoted with approval by

our Supreme Court in Ex parte Yarber, 375

So2d 123] (Ala. 1979), at page 1234, as fol-

lows

“Thu doctrine requires thal any covert

statement be construed against the de-

fendant ‘lo other words, no matter

what the jury might infer, there must

virtually be « direct sdentification of the

defendant alone as Une individual who has

ORDEK OF COURT SENTENCING

DEFENDANT TO DEATH

Thw being the day set for the sentence

IN THE CIRCUIT COURT OF

MARENGO COUNTY, ALABAMA

CASE NUMBER OC-6)-088

1) The capital felony was committed

while the Defendant was engaged in

fught afver committing a robbery.

2) The capital felony was commitied

for Une purpose of avosding or preventing

a lawful arrest. ;

The Court finds that the following miti-

gaung Greumstance enumerated in Secon

13-11-17, Code of Alabama 1975, was

present but insufficient te outweigh the

aggreveling circumstances,

The Defendant has po mgnificant histo

ry of price criminal activity.

The Court further finds Unai the Defend-

antares the person who intentionally fired

the shot Unat willed the victim. The Court

It ia, therefore, the judgment and opinion

of the Court that it is now proper to pro-

Bounce judgment and seatence the Defend

EX PARTE DOBARD

(Cite as 638 Sad 128) (Am 1983)

APPENDIX A—Continued

ant to death The Defendant, after being

asked if be has anything further to aay why

sentence of law should not be now imposed

upon him, says nothing

It ia, therefore, ORDERED, ADJUDGED

and DECREED by the Court that the De-

fendant, Perey Leo Dobard, is sentenced to

death by electroculion as provided by the

laws of the State of Alabama The execu-

on of the sentence of death w suspended,

pending the sulomatic appeal required by

law. It is further ORDERED that David

Reid, Livingston, Alabama, is appointed to

represent the Defendant on appeal and an

appeal to the Court of Criminal Appeals of

Alabama is entered as required by law

It is further ORDERED that the Defend.

ant, Percy Leo Dobard, remain in custody

during the pendency of the appeal, and that

the Sheriff of Sumter County, Alabama,

forthwith transport tne Defendant to the

Wiliam C. Holman unit of the prison sy>

tem and deliver bim to the custody of the

Warden of William C. Holman unit of the

prison system at Atmore, Alabama

All DONE and ORDERED thu, the 13th

day of April, 196)

od Claud D Neilson

CLAUD D. NEILSON

CIRCUIT JUDGE

cause; (3) defendant was not deprived of

right to fair trial by news media coverage

of assassinalon attempt on President Reag-

1. Criminal Law @ = 855(8)

Jury's exposure lo media coverage of

assassination attempt on life of president of

the United States, which occurred during

defendant's capital murder trial, did

deprive defendant of hs right to a fair

inal.

2 Jery @ 35.1) s

Record did not support defendant's

blacks and five whites

” & Jeary @ 108

No venireman may be removed far

cause unless it is determined that his views

as lo capita) punwhment are eo strong that

death penalty and prospective juror who

tadicatad that be bad « fixed opinion

against capital punshment regardiess of

UNITED STATES CONSTITUTION

EIGHTH AMENDMENT

Excessive bail shall not be required, nor excessive fines

aposed, nor cruel and unusual punishments inflicted.

FOURTEENTH AMENDMENT

Section 1. All persons born or naturalized in the United

tates, and subject to the jurisdiction thereof, are citizens of

‘ve United States and the State wherein they reside. No State

nall make or enforce any law which shall abridge the privileges

immunities of citizens of the United States; nor shall any

~tate deprive any person of life, liberty, or property, without

iue process of law; nor deny to any person within its jurisdic-

tion the equal protection of the laws.

APPENDIX D

$ 13A-5-53 PUNISHMENTS AND SFNTENCES § 13A-5-53

§ 13A-5-53. Appellate review of death sentence; scope; remand; specific

determinations to be made by court; authority of court

following review.

(a) In any case in which the death penalty is imposed, in addition to

reviewing the case for any error involving the conviction. the Alabama court

of criminal appeals. subject to review by the Alabama supreme court, shall also

review the propriety of the death sentence. This review shall include the deter-

mination of whether any error adversely affecting the rights of the defendant

was made in the sentence proceedings. whether the trial court's findings con-

cerning the aggravating and mitigating circumstances were supported by the

evidence, and whether death was the proper sentence in the case. If the court

determines that an error adversely affecting the mghts of the defendant was

made in the sentence proceedings or that one or more of the trial court's

findings concerning aggravating and mitigating circumstances were not sup-

ported by the evidence. it shall remand the case for new proceedings to the

extent necessary to correct the error or errors. If the appellate court finds that

no error adversely affecting the rights of the defendant was made in the sen-

tence proceedings and that the trial court's findings concerning aggravating

and mitigating circumstances were supported by the evidence, it shall proceed

to review the propriety of the decision that death was the proper sentence.

(b) In determining whether death was the proper sentence in the case the

Alabama court of criminal! appeals, subject to review by the Alabama supreme

court, shall determine

(1) Whether the sentence of death was imposed under the influence of

passion, prejudice, or any other arbitrary factor,

(2) Whether an independent weighing of the aggravating and mitigaiing

circumstances at the appellate level indicates that death was the proper

sentence and

(3) Whether the sentence of death is excessive or disproportionate to the

penalty imposed in similar cases. considering both the crime and the defen-

dant

(¢) The court of criminal! appeals shal! explicitly address each of the three

questions specified in subsection (b: of this section in every case it reviews in

which a sentence of death has been imposed

id) After performing tne review specified in this section, the Alabama court

of criminal appeals, subject to review by the Alabama supreme court, shall be

authorized to

(1) Affirm the sentence of death

(2) Set the sentence of death aside and remand (o the trial court for correc-

tion of any errors occurring during the sentence proceedings and for imposi-

tion of the appropriate penalty afier any new sentence proceedings that arc

necessary. provided that such errors shal! not aflect the determination of

guilt and shall not preclude the imposition of a sentence of death where it is

determined to be proper aller any new sentence proceedings that are deemed

Necessary. or

133

$ 13A-5-54

CRIMINAL CODE

% 13A-5-55

(3) In cases in which the death penalty is deemed inappropriate under

subdivision (b"2) or (bw 3) of this section, set the sentence of death aside and

remand to the trial court with directions that the defendant be sentenced to

life imprisonment without parole. ‘Acts 1981. No. 31-178. § 15.)

Collateral references. — 24 CJS. Crim-

mai Law. #3 1643-1647. 183)-1540

5 Am Jur Jd. Appeal and Error. : 723

§ 13A-5-54. Appointment of experienced counsel for indigent defen-

dants.

Each person indicted for an offense punishable under the provisions of this

article who is not able to afford Jegal counsel must be provided with court

appointed counsel having nv less than five vears prior experience in the active

practice of criminal! law. ‘Acts 1951, No. 81-178. : 16.)

Editor's note. — In light of the similarity of

the provisions. decisions under former

+ 13A-5-37 are included ip the annotations tor

this section

section does not require the record

to show that appointed counsel has at least

five years’ prior experience in the active

practice of criminal law. it sumply requires that

the indigent accused be provided such counsel

Absent some tangibie indication that the

requirements were not met. 4 court cannot

summarily rule. as @ matter of law. that the

statute was not complied with Johnson +

State, 399 So 2d 659 ‘Ala Crim App 1979:

aff'd in part and rev d in part, 399 So. 2d 873

‘Ale 1981)

Appointment in keeping with section. —

Where an attorney has practiced criminal law

at (he cail of the criminal docket im Une county

tor 10 veers. his sppommtment to « case

involving a capstal felony 1 in keeping with the

provision of this section requiring not less than

five years prior expervence im the active prac-

tice of cruminal law Jacobs v State. 371 So 2d

429 ‘Ala Crim App 1977). rev d on other

grounds. 371 So 2d 448 :Ala. 1979)

Collateral references. — 23 CJS. Cnm-

inal Law. 3 97TH 1:

21 Am Jur 24. Criminal Law. $9 309-317

Accused » might to represent himself in state

criminal proceeding — modern siate cases. 96

ALR34 13

§ 13A-5-55. Conviction and sentence of death subject to automatic

review.

In all cases in which a defendant is sentenced to death, the judgment of

conviction shail be subject to automatic review. The sentence of death shal! be

subject to review as provided in section 13A-5-53. ‘Acts 1981, No. 81-178, § 17.)

Editor's note. — 'n hight of the sumilarity of

the provissens decisions under former

$ 13A-5-34 are inciuded in the annotations tor

this section

The whole purpose of ti 13A-5-3)

through 13A-5-36 now repesied: «as lo allow

for yudscial review of @ sentence of death fined

by the jury Ayzery State 399 So 2d JW: Ale

1961)

Scope of review. — Each death sentence

should be reviewed to ascertamn whether the

crime was in fact one properly punishable by

death. «hether similar crimes throughout the

slate are being punished capitaliy and wheth

Une sentence of death is approprate in relation

to the partwular defendant in making thu

final determination ine courts should examine

the penalty imposed upon the defendant in

relation lo Ral umposed upen his accomplices.

lane Becks State 396 Se 24645:Ala 1960)

Collateral references. — 24 CJS. Crom

onal Lew ¢) 1643-1647 1431-1660

5S Am Jur 24, Appesl and Error. 4 723

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