Opposition Brief — Frederick Lynn v. Alabama

Supreme Court brief1989

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Supreme Court, 1.S.

FILED

mare OCT 2 1889

. SP L, JR.

deb Vcue vine JOSEPH F. SPANIOLN, JR

NO. 89-5503 te

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1989

FREDERICK LYNN,

Petitioner, RECEIVED

OCT - 4 1989

OFFICE OF THE CLERK

SUPREME COURT, U.S.

STATE OF ALABAMA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

RESPONDENT'S BRIEF IN OPPOSITION

ERTIORARI

DON SIEGELMAN

ALABAMA ATTORNEY G

ENERAL

WILLIAM DUNCAN LITTLE III

ALABAMA ASSISTANT

GENERAL*

COUNSEL FOR RESPON

Office of the Atto

Alabama State Hous

- 1l South Union Str

Montgomery, Alabam

205/242-7300

*COUNSEL OF RECORD

ATTORNEY

DENT

rney General

eet

a 36130

II.

QUESTIONS PRESENTED FOR REVIEW

SHOULD THE COURT GRANT CERTIORARI AS TO PETITIONER'S

SIXTH AMENOMENT CLAIM WHERE NO SIXTH AMENDMENT ISSUE

WAS RAISED IN OR DECIDED BY THE COURT BELOW?

SHOULD THE COURT GRANT CERTIORARI AS TO PETITIONER'S

FOURTEENTH AMENDMENT ISSUE WHERE IT IS PLAINLY NOT

WORTHY OF CERTIORARI REVIEW?

PARTIES

The caption contains the names of all parties in the court

below.

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW...... sources secnees veenes

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TABLE OF CONTENTS.......seeeeeeeees evecescece sdeeecdoeens

TABLE OF AUTHORITIES. ...ccesececseessceees evcovevesecceue

CORNER occa ceceveccccosecsess MPITTITITIVITI TTT Tee

OPINIONS BELOW........eeeeeeeee WITTTTITITI TTT TT

JR BOT gc ccc ee eee eee SEO SESE EO OEEESES OES EEESEOESESEOS

CONSTITUTIONAL PROVISIONS INVOLVED...ceeeeeeceeeecceececs

STATEMENT OF THE CASE ccc creer cece ecoeeeeeseeeceeeesoeoses

ARGUMENT occ eee eee OOOO OSOHOHEOOHOHOHOHOEHEOHOSO ELE SEOEOEEO®S

I. THE COURT SHOULD DENY CERTIORARI

AS TO PETITIONER'S CLAIM BASED ON

THE SIXTH AMENDMENT BECAUSE NO SIXTH

AMENDMENT ISSUE WAS RAISED IN OR

DECIDED BY THE COURT BELOW... .ccecececcceevceses

II. THE COURT SHOULD DENY CERTIORARI AS

TO PETITIONER'S CLAIM BASED ON THE

POURTEENTH AMENDMENT BECAUSE IT IS

NOT WORTHY OF CHES GMEM Rc coccececeereeeeeeesseete

COMECL DATO. occ eee eee OOOSSOEOSEHSHSHOSSOESHS OSE SESE OSESEEDS

CERTIFICATE OF BEV EGCRc cece coc ee sees eeeseeeeseeesesosesees

PAGE

iii

TABLE OF AUTHORITIES

CASES PAGE(S)

Bailey v. Anderson, 326 U.S. 203 (1985S) ..ceeeeeeeeeeeeee 3

Batson v. Kentucky, 476 U.S. 79 (1986). ..cceeeeeeeeeeeee 276

Ex parte Branch, 526 So.2d 609

a. EE eee rrr Te rer rre rT Ter ho

Griffith v. Kentucky, 479 U.S. 314 (1987)... ewww eenvcnes 4

Lynn v. State, 543 So.2d 704

a. Ee Ppp. | | rr rrrerreerreirreerecrirresrirertet 1,2,4

Ex parte Lynn 543 So.2d 709

a sspewnneuwasée 1-4

Ex parte Lynn, UF cee 1988 (Hie. BGSbccccccesccoeces BS

Street Vv. New York, 394 i F 576 errr r Try Cr 3

STATUTES

Code of Alabama 1975, § 13A-5-31l(a)(4) (repealed)....... 2

United States Constitution, Amendment VI......eeeeeeeee+ lL

United States Constitution, Amendment XIV......eeeeeeee 1

OPINIONS BELOW

The decision of the Court of Criminal Appeals affirming

petitioner's conviction and death sentence reported as Lynn v.

State, 543 So.2d 704 (Ala.Cr.App. 1987). The decision of the

Supreme Court of Alabama affirming the decision of the Court of

Criminal Appeals is reported as Ex parte Lynn, 543 So.2d 709

(Ala. 1988).

JURISDICTION

The Court has no jurisdiction as to the Sixth Amendment

issue raised in the petition because it was not raised in or

decided by the Court below. The Court has jurisdiction as to

the Fourteenth Amendment issue under 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS

United States Constitution, Amendment VI

(in pertinent part)

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and pubiic

trial, by an impartial jury of the state and

district wherein the crime shall have been

committed,....

United States Constitution, Amendment XIV

(in pertinent part)

»»-(NJor shall any state...deny to any

person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

Petitioner was indicted in April 1983 by the Grand Jury of

Barbour County, Alabama, for the capital offense of intentional

killing during a nighttime burglary of an occupied dwelling

under Code of Alabama 1975, § 13A-5-31(a)(4) (repealed).

Petitioner was convicted and sentenced to death, but this

conviction was reversed by the Supreme Court of Alabama. Ex

parte Lynn, 477 So.2d 1385 (Ala. 1985).

Petitioner was tried a second time, and again convicted and

sentenced to death. On appeal the case was remanded by the

Court of Criminal Appeals of Alabama, under the authority of

Batson v. Kentucky, 476 U.S. 79 (1986), for a determination of

whether there was a prima facie case of discrimination under

Batson and, if so, to give the prosecutor an opportunity to

give race-neutral reasons for his strikes. Lynn v. State, 543

So.2d 704 (Ala.Cr.App. 1987). The trial court subsequently

found no discrimination. On return to remand the case was

affirmed by the Court of Criminal Appeals. Id. The decision

of the Court of Criminal Appeals was affirmed by the Supreme

Court of Alabama on December 30, 1988. Ex parte Lynn, 543

S$o.2d 709 (Ala. 1988). On July 14, 1989, the Supreme Court of

Alabama overruled an application for rehearing.

ARGUMENT

I. THE COURT SHOULD DENY CERTIORARI AS TO

PETITIONER'S CLAIM BASED ON THE SIXTH

AMENDMENT BECAUSE NO SIXTH AMENDMENT ISSUE

WAS RAISED IN OR DECIDED BY THE COURT BELOW

Petitioner claims that the prosecutor's striking of certain”

black jurors violated his Sixth Amendment right to an impartial

jury. The argument in the Supreme Court of Alabama, however,

was based on Batson v. Kentucky, 476 U.S. 79 (1986), which

pertains to the Fourteenth Amendment alone (see Appendix A, a

copy of petitioner's brief in that court). The decision of the

Supreme Court of Alabama addressed only arguments under

Batson. Ex parte Lynn, 543 So.2d 709 (Ale. 1988).

This Court has no jurisdiction as to issues neither raised

in nor decided by the court below. Street v. New York, 394

U.S. 576, 581-582 (1969); Bailey v. Anderson, 326 U.S. 203,

206-207 (1945). For this reason the Court should deny the

petition as to this Sixth Amendment issue.

II. THE COURT SHOULD DENY CERTIORARI AS TO

PETITIONER'S CLAIM BASED ON THE FOURTEENTH

AMENDMENT BECAUSE IT IS NOT WORTHY OF

CERTIORARI

Petitioner asks the Court to grant certiorari and decide

whether reasons given by the prosecutor for his strikes of

certain black jurors were race-neutral. The actual claim,

however, as presented by petitioner's own argument, is not that

these reasons are facially insufficient, but that the record as

a whole indicates discrimination. This issue presented is not

worthy of certiorari review.

In Batson v. Kentucky, 476 U.S. 79 (1986), the Court

established a general procedure to be followed where a

defendant believes he is the victim of racial discrimination in

jury selection, The defendant must first make a prima facie

showing of discrimination. 476 U.S. at 96-97. If this is

done, the burden shifts to the prosecution to come forward with

race-neutral reasons for its strikes of the veniremembers in

question. Id., at 97. The trial court then has the duty to

determine, based on all relevant circumstances, whether there

was purposeful discrimination. Id., at 98.

The trial in this case was held prior to Batson v.

Kentucky, Supra. On appeal the Court of Criminal Appeals,

noting that Batson was applicable to the case under Griffith v.

Kentucky, 479 U.S. 314 (1987), remanded the case to the trial

court for a determination of whether a prima facie case of

discrimination had been established and, if so, to give the

prosecutor an opportunity to come forward with race-neutral

reasons for his strikes. Lynn v. State, 543 So.2d 704, 706

(Ala.Cr.App. 1987). A hearing was held, at which the

prosecutor gave explanation for his strikes, and the trial

court found no purposeful racial discrimination. This decision

was affirmed by the Court of Criminal Appeals, and later by the

Supreme Court of Alabama. Ex parte Lynn, 543 So.2d 709 (Ala.

1988).

The prosecutor's reasons were as follows:

At the hearing, the District Attorney

testified, under oath, and the trial court

allowed defense counsel to cross-examine the

witness. The District Attorney's stated

reasons for striking the eleven black

persons from the jury venire are as

follows: (1) The juror was the brother of

aman the District Attorney had criminally

prosecuted and convicted "on several

occasions" and the brother of another man

against whom the District Attorney's Office

was “presently enforcing child support.*

(2) The juror's husband was related to the

defendant's father. (3) The juror was

twenty-five years old and “reputed to be

connected with drugs." His father had a

felony record and had been convicted of a

drug related offense. The juror also lived

in the same area of the county as did the

lead defense counsel. (4) The juror lived

in an area where the defendant was living at

the time of the crime and where the

defendant's aunt and grandmother had lived

for “numerous years." (5) The juror was a

co-employee of the father of Gary Marcus

Strong, an accomplice and co-defendant and a

key witness against the defendant. Strong

had a “bad reputation" and had pleaded

guilty “to a crime in connection with [the]

crime" for which the defendant was being

tried. If the juror knew of Strong, he

might not believe his testimony.

Additionally, a small community was involved

and the juror's name was Jackson. The

District Attorney had prosecuted and

convicted eight people named Jackson in the

past eight years. The District Attorney

Suspected that the juror might be related to

one of those convicts. (6) The juror was

twenty-eight years old, unemployed, and

lived closed to a city magistrate. The lead

defense counsel was the city clerk and the

mayor assisted defense counsel in striking

the jury. (7) The juror lived one block

from co-defendant Strong. The District

Attorney “felt that anyone that knew

[Strong] might doubt what he was telling

even though he was under oath.* The juror

also lived in "a very high crime district*

and might “not be as shocked or opposed to

crime because of those things." (8) The

juror was a neighbor of the defendant's

grandmother and aunt and lived in close

proximity to the defendant when the crime

was committed. (9) The juror was a friend

of, and worked with, the wife of the father

of the defendant. (10) The eighty-year-old

juror appeared “feeble and hard of hearing"

and "somewhat weak on death

qualifications." (11) The juror was

twenty-three years old, had a child fathered

by co-defendant's Strong's brother, and was

related by marriage to a state investigator

who would testify as a witness. The

investigator felt she would not be favorable

to the State's case.

543 So.2d at 708-709. These reasons are related to this case

in that they either arise from the particular facts here or are

consistent with the State's general striking philosophy in any

criminal case. Petitioner presents no serious argument that

these reasons are not race-neutral on their face. Rather,

petitioner argues in the main that these reasons are

unacceptable here because, allegedly, they are inconsistent

with voir dire questioning and other striking by the prosecutor.

The issue thus presented by petitioner is not whether the

reasons here were facially satisfactory under Batson, but

instead whether based on the record as a whole the trial court

was correct in finding no discrimination. The Court stated in

Batson that because the trial court's findings on the ultimate

issue of discrimination largely turn on questions of

credibility, those findings are entitled to "great deference"

on appeal. Id., at 98 n. 21.

The issue here is not worthy of certiorari review, for two

reasons. First, any decision here would have little value as

precedent. The issue is whether, based on all the

circumstances reflected in the record, the trial court's

decision was clearly erroneous. Any decision would be based on

the particular facts of this case and would have little general

application. This Court is well aware of the relentless

demands on its time to decide cases of far-reaching impact.

This is simply not such a case,

The second reason certiorari review is inappropriate here

stems from the standard of review mandated in Batson. AS was

stated above, the trial court's determination as to the

existence of discrimination is to be given great deference on

appeal. Petitioner has not shown that the trial court's

decision was clearly erroneous. Moreover, a review of that

decision, based as it would be on the record as a whole, would

best be undertaken by a lower court, as it undoubtedly will be

in this death-penalty case. Pee

Petitioner repeatedly argues that the trial court's

decision was contrary to various aspects of Ex parte Branch,

526 So.2d 609 (Ala. 1987). In Batson the Court left to the

lower courts the task of developing procedures for implementing

the holding there, 476 U.S. at 99 n.24, and the Supreme Court

of Alabama undertook that responsibility in Branch. This

Court, however, has neither approved nor disapproved the

various guidelines set forth in Branch. Petitioner's complain

before this Court that Branch has been violated is therefore

beside the point. Moreover, the Supreme Court of Alabama,

surely the highest authority on the dictates of Branch, found

no violation of Branch. 543 So.2a 709.

The issue presented in this case is not worthy of

certiorari review. For this reason tne Cgurt should deny

certiorari.

lpetitioner's reliance on Houston v. Alabama, 108 S.Ct.

1724 (1988), is also misplaced. In Houston the State of

Alabama moved that the case be remanded to the Court of

Criminal Appeals of Alabama for consideration under the newly

announced guidelines of Branch. The Court granted certiorari,

vacated the judgment, and remanded the case to the Court of

Criminal Appeals in light of the State's motion. Houston thus

does not stand for anything.

CONCLUSION

For the above reasons the petition for writ of certiorari

should be denied.

Respectfully submitted,

DON SIEGELMAN

ALABAMA ATTORNEY GENERAL

BY-

WILLIAM DUNCAN L LE I

ALABAMA ASSISTANT ATTORNEY

GENERAL

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF SERVICE

I, William Duncan Little III, a member of the Bar of the

Supreme Court of the United States, do hereby certify that on

this gaol day of October, 1989, I did serve a copy of the

foregoing brief and argument on the attorney for petitioner by

placing said copy in the United States Postal Service, first

class postage prepaid, and properly addressed as follows:

Hon. L. Dan Turberville

1117 22nd Street South

Birmingham, AL 35205

~ a

WILLIAM DUNCA® LITTLE III

COUNSEL FOR RESPONDENT

ADDRESS OF COUNSEL:

Office of the Attorney General

Alabama State House

11 South Union Street

Montgomery, AL 36130

(205) 242-7300

1047Vv

LN THE ALABAMA SUPREME COURT

FREDERICK LYNN,

APPELLANT

vs.

STATE OF ALABAMA,

APPELLEE

Appeal from the Circuit Court

of Barbour County, Alabama

SC No. 86-1474

BEBE C ISOC III IC SIO IIT bei ties

BRIEF AND ARGUMENT OF APPELLANT

ON PETITION FOR WRIT OF CERTIORARI

TO THE ALABAMA COURT OF CRIMINAL APPEALS

IN 4th DIV., NO. 698

helelelalalthalahalsishelisiieeleeeD Let TLE TT TT TTT Tree TTT TTT een

Donald J. McKinnon

Attorney for Appellant

224 East Broad Street

P. O. Box 379

Eufaula, Alabama 36027

ORAL ARGUMENT REQUESTED

APPENDIX A

TABLE OF CONTENTS

6 2s aoe see cae ea dees seen ekhedunes

ee hs oa 6 6606660666665 0866660646008 a

STATEMENT OF THE Dl Miictbikepede on kéne Gee eh os 26de bbb eo eweeeee

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW.......ccccceccees

SUMMARY OF TRIAL COURT RULINGS AND ACTIONS

ADVERSE TO APPELLANT

STATEMENT of DONTE. none cccescesccecesccceteccsdgiiihinssiieies

ARGUMEN

I. THE TRIAL COURT ERRED IN FINDING THAT THE DISTRICT

. ATTORNEY'S STRIKES WERE NOT RACIALLY MOTIVATED.......

II. THE TRIAL COURT ERRED IN REFUSING TO PERMIT APPELLANT

TO CROSS-EXAMINE THE DISTRICT ATTORNEY AS TO VENIRE-

MEN NOT STRUCK BY THE DISTRICT ATTORNEY..............

III. THE TRIAL COURT ERRED IN FAILING TO ORDER THAT THE

PROSECUTION NOT USE ITS PEREMPTORY STRIKES IN A MANNER

PAGE

TO EXCLUDE ALL BLACK PERSONS FROM JURY DUTY.....ccccccecces 9

IV. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN CHALLENGE FOR

CAUSE OF INDIVIDUAL WHO WAS SUPERVISOR OF LAW ENFORCEMENT

Pit nay AT TIME SUCH OFFICERS WERE INVESTIGATING THIS

ue 4-0:66066060860006é6b 0066

eee ee eee wee eeeaeeaeeeeeeeeeeeeneee 117

V. THE TRIAL COURT ERRED IN PERMITTING PROSECUTION WITNESS TO

GIVE OPINION THAT VICTIM'S HOUSE HAD BEEN "RANSACKED"..... 13

VI. THE TRIAL COURT ERRED IN FAILING TO SUSTAIN OBJECTION TO

FOLLOWING QUESTION TO PROSECUTION WITNESS: “PRIOR to

SEEING THEM (INVESTIGATORS) DID YOU KNOW .THEY WERE COMING? 15

VII, THE TRIAL COURT ERRED IN FAILING TO SUSTAIN OBJECTION TO

FOLLOWING QUESTION TO PROSECUTION WITNESS: "DO YOU KNOW

SHE WAS FILLED ON FEBRUARY STH OF THAT YEAR?"

VIII. LYNN WAS CONVICTED ON THE UNCORROBORATED TESTIMONY OF AN

ACCOMPLICE. wcccccccces

IX, THE TRIAL COURT SHOULD HAVE DECLARED A MISTRIAL AFTER

DISTRICT ATTORNEY STATED IN ARGUMENT THAT HE BELIEVED

WITNESS... cccce eeeee

ef, ee e@e @ @ @ © sree eereeeereeeeeeeeeeeeeeeeee 17

Page-

X. IT WAS ERROR FOR THE TRIAL COURT TO DENY APPELLANT'S

MOTION FOR A RANDOM DRAW DONE OF THE QUALIFIED JURY

PANEL IMMEDIATELY PRIOR TO THE MAKING OF PEREMPTORY

eo 6 6 66 6.6.6.66.06 F606 TH OO FSCO OHHESEESEOROEOCEEOEC CO DOS

XI. THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE THE

BARREL FROM A SAWED-OFF SHOTGUN FOUND AT THE HOME OF

APPELLANT'S GRANDMOTHER... cccccccccccvvvsesceseseseeese

XII. THE ALABAMA DEATH PENALTY STATUTE IS UNCONSTITUTIONAL

IN THAT IT CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT IN

VIOLATION OF THE CONSTITUTIONS OF THE UNITED STATES

AND OF ALABAMA... ccc cece eee cere e eee e eee eeeeeseeseees

XIII. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION

THAT THE APPELLANT RECEIVE TWO STRIKES FOR EACH ONE

STRIKE FOR THE STATE IN JURY SELECTION eoeeeoeeeeneeneeeeeeee

XIV. WHEN COMPARED WITH SIMILAR CASES, THE DEATH PENALTY IS

INAPPROPRIATE IN THIS CASE...... Se

Cris «6060006006664 e@e@eee@e@esese @ *eeeeeeeeeeeeeneeeeeeeeeeee

CERTIFICATE OF SERVICE... cee eeeecces Trrrrrrrrrrr rrr errr eee

TABLE OF AUTHORITIES

Cases:

Adams v. State, 280 Ala. 678, 198 So. 2d 255 (1967)........ xv,28

REQUEST FOR ORAL ARGUMENT

Anderson v. State, 362 So. 2d 1296 (Ala. Cr. App. 1978).... xv,31

Anderson v. State, 44 Ala. App. 388, 210 So. 2d 436 (1968). xiv,24,26

Defendant, Frederick Lynn, request oral argument of this appeal for

Batson v. Kentucky, 106 S. Ct. 1712 (1986)......ccecees -ee+ xii,6,7,8,9,.

tte following reasons:

Bill Steber Chevrolet - Oldsmobile, Inc., v. Morgan, 429 So,

1. This is a death penalty case. ee i pee bkeed ee esebenesé<¢s ce ceecceecesesccese KILL, 15

2. This case involves important questions concerning what constitutes Blue v. State, 246 Ala. 73, 19 So. 2dl...ceceeececccceeeess ls

corroboration of the testimony of an accomplice. Booker v. State, 477 So. 2d 1388 (Ala. Cr. App. 1985)...... 25

3. This case involves important questions concerning the constitution- Brown v. State, 37 Ala. App. 516, 74 So. 2d 273, affd. 261

Ala. 696, 74 So. 2d 277 (1954)......... TETTTTTIL ETT TTT xii,11,28

ality of the Alabama death penalty statute.

; : ; Brown v. State, 393 So 2d 513 (Ala. Cr. App. 1981)......... XV

4. This case involves numerous questions concerning the interpretation

Bush v. State, 431 So. 2d 555 (Ala. Cr. App. 1982)........ - xvi,39

of various portions of the Alabama death penalty statute.

Caldwell v. State, 418 So. 2d 168 (Ala. Cr. App. 1981),

S$. This case involves an important constitutional question involving the ee a a, ee. ccucasucescesieccnsesnes xiv, 24,25

use peremptory strikes to exclude blacks from jury. Central of Georgia Ry. Co. v. Robertson, 206 Ala. 578, 91

_ So. 470 i BSS Ubeeeee sc eee ee eee eeeeeeeneeeeee eee eeee eee eeeee xiii,13

Clisby v. State, 456 So. 2d 86 (Ala. Cr. App. 1982)........ xvi,39,40

7 Cunningham v. State, 22 Ala. App, 583, 118 So. 242......... xv, 32

L) Deerman v. State, 486 So. 2d 515 (Ala. Cr. App. 1986)...... xiv, 26

Odd PUG cree Douglas v. Central of Georgia Ry. Co., 201 Ala. 395, 78 So.

Donald J./Mckinnon . 457 (1918) “eee ee ef oe, ee ee ee wee weer rrr eee ere eee eee eee eeeeeeeee xiii 13

Attorney for Appellant, Frederick Lynn ,

DuBose v. State, 148 Ala. 560, 42 So. 862....... cee eeeecees xv, 28

Evans v. State, 361 So. 2d 654 (Ala. Cr. App. 1977)........ xvi,39

Ex parte Bell, 475 So. 2d 609 (Ala. 1985)... .ccccccccccees xvi,41

Ex parte Floyd, 486 So. 2d 1321 (Ala. 1986)............206. xvi,41

Ex parte Harrell, 470 So. 2d 1309 (Ala. 1985)... ceeee xvi.41

Ex parte Duren, 507 So. 24121 (Ala. 1987) seeseeseececeeeees xvi G2

Ex parte Grayson, 479 So. 2d 76 (Ala. 1984)... eeeeeeee se** xvi, 42

Ex parte Hubbard, 500 So. 2d 1231 (Ala. 1986) eee eeeeeeeeeees xyi 42

- Ex parte Tarver, 500. So. 2d 1256 (Ala. 1986)........eeeee

=x parte Thompson, 503 So. 2d 887 (Ala. 1987).......ccceees

Ex parte Jefferson, 473 So. 2d 1110 (Ala. 1985)............

Ex parte Watkins, 509 So. 2d 1065 (Ala. 1984)..........e0e-

Ex parte Jones, 456 So. 2d 380 (Ala. 1984)... cece esevecess

Ex parte Kennedy, 472 So. 2d 1100 (Ala. 1985).........ee0es

Ex parte Thomas, 460 So. 2d 216 (Ala. 1984)..... weocccccese °

Nass we. U.8., 439 F. 26 S62 (5 Cis. 1969). ccccccccceccesss

Harris v. State, 420 So. 2d 812 (Ala. Cr. App. 1982)..... oe

Humphrey v. State, 370 So. 2d 344 (Ala. Cr. App. 1979).....

Jetton v. State, 435 So. 2d 167 (Ala. Cr. App. 1983).......

Keller v. State, 380 So. 2d 926 (Ala. Cr. App.).......eeee:

Kimmons v. State, 343 So. 2d 592 (Ala. Cr. App. 1977)......

Knighten v. State, 35 Ala. App. 534, 49 So. 2d 789

(1951)

Ladd v. State, 39 Ala. App. 172, 98 So. 24 S6...cccccccceces

Leonard v. State, 459 So. 2d 970 (Ala. Cr. App. 1984)......

Lindhorst v. State, 346 So. 2d 11 (Ala. Cr. App. 1977).....

Lindsey v. State, 456 So. 2d 383 (Ala. Cr. App. 1983)......

Loveman, Joseph, & Loeb v. McQueen, 203 Ala. 280, 82 So.

Saw COPEPcescssce .

Lynn v. State, 477 So. 2d 1365 (Ala. Cr. App. 1984)

McAdory v. State, 37 Ala. App. 349, 68 So. 2d 68

(1953)

eoeeeseeoeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeee ee eee ee @

McCoy v. State, 397 So. 2d 577 (Ala. Cr. App. 1981

McGhee v. State, 274 Ala. 375,

349 Ge. 26 B Cie bendeseeee

McGuffin v. State, 178 Ala. 40, 59 So. 635 (1912)

Means v. State, 51 Ala. App. 8, 282 So. 2d 356

xvi,42

xvi,41

xvi,42

xvi,43

xvi,41

xv,28

xiv,24

xv,32,34

xv,28

xiv

xiv,24,25

xvi,40

xiii,15

xvi,39

Mills v. State, 408 So. 2d 187 (Ala. Cr. App. 1981)........

Oakley v. State, 135 Ala. 29, 33 So. 693 (1903)......--eee-

Peacock v. State, 369 So. 2d 61 (Ala. Cr. App. 1979).......

Ritter v. State, 375 So. 2d 266 (Ala. Cr. App’ 1978).......

Russell v. State, 54 Ala. App. 452, 309 So. 2d 489 (1974)..

Sorrell v. State, 249 Ala. 292, 31 So. 2d 82 (1947)....-4.-.

Sovereign Camp of Woodman of the World v. Ward, 196 (Ala.

337-71 80, eee ee eek eeececeees veedueeee choos

Standard Cooperage Co: v. Deerman, 204 Ala. 553, 86 So.

SSF Caeeesccececse Tt aaah ee eek OC CS66 COC CCE CORO ORE HSOOES

Stokley v. State, 254 Ala. 534, 49 So. 2d 284 SASS R dc cvcces

Swain v. Alabama, 380 U.S. 202 (1965)... 2. cece eee eecceess

Tarver v. State, 492 So. 2d 328 (Ala. Cr. App. 1986).......-

Taylor v. State, 442 So. 2d 128 (Ala. Cr. App. 1983).....--.

Thompson v. State, 374 So. 2d 388 (Ala. 1979).....eeeeeeees

Trammell v. Disciplinary Bd. of the Alabama State Bar,

431 So. 2d 1168 (Ala. 1983)... ccc cece cre cecereeeenereceeees

Waldrop v. State, 424 So. 2d 1345 (Ala. Cr. App. 1982).....

Washington v. State, 56 Ala. App. 555, 323 So. 2d 738

Or) ) RPP PPPPPTPrTrrrereeee ECE O See

Weatherspoon v. State, 34 Ala. App. 450, 40 So. 2d 910

8 | SSFP eraser eereeeeeEEEUEEEEPREEEE EERE Cee

Welch v. City of Birmingham, 389 So, 2d 521 (Ala. Cr. App.

ESTES SFr Tr rere reerere eee eee reer ee

Williams v. State, 384 So. 2d 1205, (Ala. Cr. App. 1980)...

Woods v. State, 387 So. 2d 313 (Ala. Cr. App. 1979).......-

xv,32

xv,33,34

Statues:

nn pees. Bove, Bee. F< 8G iGO ss co cccesnvteseeescssen xXv,xvi,

ee or en. nove. © Been teh SG. :sakhecsawsasaeas eeeeauns xiii

a: CR Ea ek eee ee xvi,37,

Textbook:

McElroy's Alabama Evidence, 3ed, S 128.09... ccceesesesvcese KAli, 13

vii

STATEMENT OF THE CASE

On March 21, 1983, Sgt. A. G. Tew, an Investigator for the Alabama

Bureau of*investigation, filed petitions in the Juvenile Court of Barbour

County, Alabama, alleging that Frederick Lynn, a sixteen-year-old child,

was deliquent. (lc, 2c and 3c of record in 4 Div. 161). In Case maeer

JU- 83-0166, Tew alleged as follows: "The said child is delinquent in that

on or about February 5, 1981, Frederick Lynn did knowingly and unlawfully

enter or remain unlawfully in a dwelling of Marie Driggers Smith with intent

to commit a crime therein, to wit: Theft of property, and while effecting

entry or while in the dwelling or in immediate flight therefrom, said defendant

was armed with an explosive or deadly weapon, to-wit: a shotgun, in violation

of Section 13A-7-5 of the 1975 Code of Alabama, as amended.'' (1c of record in

4 Div. 161). In Case Number JU-83-0167, Tew alleged as follows: ''The said

child is delinquent in that on or about February 5, 1981, Frederick Lynn did,

in the course of committing a theft of five old coins, one ring and one watch,

the property of Marie Driggers Smith, use force against the person of Marie

Driggers Smith, with intent to overcome her physical resistance of physical

power of resistance, while the said Frederick Lynn was armed with a deadly

weapon, to-wit: a shotgun, in violation of Section 13A-8-41 of the 1975

Code of Alabama, as amended. '' (2c of record in 4 Div. 161). In case Number

JU-83-0168, Tew alleged as follows: ''The said child is delinquent in that on

or about February 5, 1981, Frederick Lynn did, in the nighttime, with intent

to commit a felony, to-wit: burglary, first degree, knowingly and unlawfully,

break into and enter an inhabited dwelling, to-wit: that certain house

viii

located at 539 South Randolph Street, Eufaula, Alabama, which was occupied by

Marie Driggers Smith, a person lodged therein and while effecting entry or

while in the inhabited dwelling or in immediate flight therefrom, said

Federick Lynn was armed with a deadly weapon, to-wit: a shotgun, and during the

course of said nighttime burglary, Frederick Lynn did intentionally cause the

death of another person, to-wit: Marie Driggers Smith, by shooting her with a

shotgun, in violation of Section 13A-5-31 (a): (4) of the 1975 Code of Alabama,

as amended."’ (3c of record in 4 Div. 161).

Also on March 21, 1983, Honorable Sam A. LeMaistre, Jr.. District Attorney,

filed Motion to Transfer the cases to Circuit Court for the defendant to be

tried as an adult. (9c of record in 4 Div. 161). On March 28, 1983, the

Juvenile Court of Barbour County, Alabama, issued an order certifying the

defendant to stand trial as an adult in all three cases. (10c of record in 4 Div.

161).

On March 31, 1983, the defendant, Frederick Lynn, gave notice of appeal of

the certification to the Circuit Court of Barbour County. (l6c of record in

4 Div. 161). Om April 8, 1983, Honorable Jack W. Wallace, Circuit Judge of

Barbour County, Alabama, issued an order certifying Frederick Lynn to stand

trial as an adult in all three cases. (22c of record in 4 Div. 161). On

April 18, 1983, Frederick Lynn gave notice of appeal of the certification order

to the Alabama Court of Criminal Appeals. (24c of record in 4 Div. 161).

Frederick Lynn's certification to stand trial as an adult was affirmed by the

Alabama Court of Criminal Appeals without opinion. (4 Div. 161).

On April 25, 1983, an indictment was returned by the Grand Jury of

Barbour County, Alabama, charging Appellant, Frederick Lynn, as follows (1C-2C

in record in 4 Div. 183):

"The Grand Jury of said County charge that, before the finding of

this indictment, and after January 1, 1980, Frederick Lynn, whose

name is to the Grand Jury otherwise unknown, did, in the night-

time, with intent to commit a felony, to-wit: Burglary, First

Degree, knowingly and unlawfully, break into and enter an inhabited

dwelling, to-wit: That certain house located at 539 South Randolph

Street, fufaula, Alabama, which was occupied by Marie Driggers Smith,

‘_ lodged therein and while effecting entry or while in the

ited dwelling or in immediate flight therefrom, said Frederick

Lynn was armed with a deadly weapon, to-wit: a shotgun, and during

the course of said nighttime burglary Frederick Lynn did intentionally

cause the death of another person, to-wit: Marie Driggers Smith,

by shooting her with a shotgun, in violation of Section 13A-5-31

(a) (4) of the 1975 Code of Alabama, as amended, against the peace

and dignity of the State of Alabama."

On May 2, 1983, Appellant, Frederick Lynn was arraigned. At arraignment,

Appellant filed an application to be tried as a youthful offender. (7C-8C

in record in 4 Div. 183). The application was denied. (8C in record in 4 Div.

183). At arraignment, Frederick Lynn pled "not guilty."' The Appellant was

tried on May 24 through May 27, 1983. (Caption Sheet, revorter's transcript

in record in 4 Div. 183). On May 26, 1983, the jury returned a verdict of

"guilty.'' (RT-369 and RT-372 in record in 4 Div. 183). On May 26, 1983, a

sentence hearing was held before the jury. (RT-372 in record in 4 Div. 183).

The jury fixed the punishment at death. (RT-404 in record in 4 Div. 183).

On May 31, 1983, the Judge held his sentence hearing. (RT-407 in record in 4

Div. 183). The Judge also fixed the punishment as death. (RT-423 in record

in 4 Div. 183). On June 30, 1983, Appellant filed alternative motions for

judgment of acquittal, in arrest of judgment, or for a new trial. (100C in

record in 4 Div. 183). On September 26, 1983, the alternative motions were

denied by the Trial Court. (105C in record in 4 Div. 183).

On October 23, 1984, the Alabama Court of Criminal Appeals affirmed

Appellant's conviction.

The Alabama Supreme Court granted certiorari; and on July 3, 1985, the

Alabama Supreme Court reserved the conviction and remanded the case for a

new trial.

The Appellant was retried on March 31 through April 4, 1986. (Caption

Sheet, reporter's transcript).

of "guilty". (RT-388).

(RT- 390).

On April 4, 1986, the jury returned a verdict

On April 4, 1986, a sentence hearing was held before

the jury.

The jury fixed the sentence at death. (RT-432). On

April 9, 1986, the trial judge held a sentence hearing. (RT-434). The trial

judge also fixed the sentence at death (RT-439 through 443).

On March 10, 1987, the Alabama Court of Criminal Appeals re-

aented the case to the Circuit Court of Barbour County for that

Court to make a determination as to whether the prosecution's

striking of all blacks on the venire was racially motivated. On

May 13, 1987,

the prosecution's strikes were racially motivated and afterwards

ruled that the strikes were not racially motivated.

1987,

On June 9,

on return to remand,

Lynn's conviction. On July 28,

1987, Lynn's Application for Re-

hearing was overruled by the Alabama Court of Criminal Appeals.

the Circuit Court held a hearing to determine whether

the Court of Criminal Appeals affirmed

Bau.

STATEMENT OF THE ISSUES PRESENTED FOR REVIEW

DID THE TRIAL COURT ERR IN FINDING THAT THE PROSECUTION'S

STRIKES WERE NOT RACIALLY MOTIVATED?

1712 <1736)

BATSON vs. KENTUCKY, 106 S. Ct.

Il.

BLACK v. CURB, 464 F. 2d 165 (1972) -

DID THE TRIAL COURT ERR IN REFUSING TO PERMIT APPELLANT'S

ATTORNEY TO QUESTION DISTRICT ATTORNEY CONCERNING VENIRE-

MEN NOT STRUCK BY THE DISTRICT ATTORNEY?

1712 (1986)

BATSON v. KENTUCKY, 106 S. Ct.

DID THE TRIAL COURT ERR IN FAILING TO ORDER THAT THE

PROSECUTION NOT USE ITS PEREMPTORY STRIKES IN A MANNER

TO EXCLUDE ALL BLACK PERSONS FROM JURY DUTY?

BATSON v. KENTUCKY,

106 S. Ct. 1712 (1986).

SWAIN v. ALABAMA, 380 U.S. 202 (1965).

IV.

DID THE TRIAL COURT ERR IN FAILING TO SUSTAIN CHALLENGE

FOR CAUSE OF INDIVIDUAL WHO WAS SUPERVISOR OF LAW EN-

FORCEMENT OFFICERS AT TIME SUCH OFT CER WERE INVESTI-

GATING THIS CASE?

BROWN v. STATE, 37 Ala. App. 516, 74 So. 2d 273, affd.

261 Ala. 696, 74 So. 2d 277 (1954).

MCADORY v. STATE, 37 Ala. App. 349, 68 So. 2d 68 (1953).

WELCH v. CITY OF BIRMINGHAM, 389 So. 2d 521 (Ala. Cr.

App. 1980).

xii

v. DID THE TRIAL COURT ERR IN PERMITTING PROSECUTION WITNESS

TO GIVE OPINION THAT VICTIM'S HOUSE HAD BEEN “RANSACKED"?

CENTRAL OF GEORGIA RY. CO. v. ROBERTSON, 206 Ala. 578, 91

So. 470 (1922).

DOUGLASS v. CENTRAL OF GEORGIA RY. CO., 201 Ala. 395, 78 So.

457 (1918).

MCELROY'S ALABAMA EVIDENCE, 3ed, § 128.09.

SOVEREIGN CAMP OF WOODMAN OF THE WORLD v. WARD, 196 Ala. 327,

71 So. 404

(1916)

STANDARD COOPERAGE CO. v. DEARMAN, 204 Ala. 553, 86 So. 537

(1920)

vg a DID THE TRIAL COURT ERR IN FAILING TO SUSTAIN OBJECTICN TO

TO FOLLOWING QUESTION TO PROSECUTION WITNESS: “PRIOR TO

SEEING THEM (INVESTIGATORS) DID YOU KNOW THEY WERE COMING?"

BILL STEBER CHEVROLET-OILDSMOBILE, INC., v. MORGAN, 429 So. 24

1013 (1983).

LOVEMAN, JOSEPH, 7 ILOEB v. MCQUEEN, 203 Ala. 280, 82 So.

530 (1919)

STOKLEY v. STATE, 254 Ala. 534, 49 So. 2d 284 (1951).

TRAMMELL v. DISCIPLINARY BD. OF THE ALABAMA STATE BAR,

431 So. 2d 1168 (Ala. 1983).

VII. DID THE TRIAL COURT ERR IN FIALING TO SUSTAIN OBJECTION TO

FOLLOWING QUESTION TO PROSECUTION WITNESS: "DO YOU KNOW SHE

WAS KILLED ON FEBRUARY Sth OF THAT YEAR?"

CODE OF ALABAMA, 1975, 8 12-21-138.

OAKLEY v. STATE, 135 Ala. 29, 33 So. 693 (1903).

xiii

VI-I.

WAS LYNN CONVICTED ON THE UNCORROBORATED TESTIMONY OF AN

ACCOMPLICE?

ANDERSON v. STATE, 44 Ala. App. 388, 210 So. 2d 436 (1968).

CALDWELL v. STATE, 418 So. 2d 168 (Ala. Cr. App. 1981). cert.

quashed Aug. 27, 1982

DEERMAN v. STATE, 486 So. 2d 515 (Ala. Cr. App. 1986)

HARRIS v. STATE, 420 So. 2d 812 (Ala. Cr. App. 1982).

KELLER v. STATE, 380 So. 2d 926 (Ala. Cr. App. ).

KIMMONS v. STATE, 343 So. 2d 592 (Ala. Cr. App. 1977).

LADD v. STATE, 39 Ala. App. 172, 98 So. 2d 56

LEONARD v. STATE, 459 So. 2d 970 (Ala. Cr. App. 1984)

LINDHORST v. STATE, 346 So. 2d 11 (Ala. Cr. App. 1977)

MCCOY v. STATE, 397 So. 2d 577 (Ala. Cr. App. 1981)

MILLS v. STATE, 408 So. 2d 187 (Ala. Cr. App. 1981)

PEACOCK v. STATE, 369 So. 2d 61 (Ala. Cr. App. 1979)

SORRELL v. STATE, 249 Ala. 292, 31 So. 2d 82 (1947).

THOMPSON v. STATE, 374 So. ed 388 (Ala. 1979).

WOODS v. STATE, 387 So. 2d 313 (Ala. Cr. App. 1979)

xiv

XI.

SHOULD THE TRIAL HAVE DECLARED A MISTRIAL AFTER DISTRICT

ATTORNEY STATED IN ARGUMENT THAT HE BELIEVED WITNESS?

ADAMS v. STATE, 280 Ala. 678, 198 So. 2d 255 (1967).

BLUE v. STATE, 246 Ala. 73, 19 So. 24 ll.

BROWN v. STATE, 393 So. 2d 513 (Ala. Cr. App. 1981)

DUBOSE v. STATE, 148 Ala. 560, 42 So. 862.

HALL v. U. S., 419 F. 2d 582 (5 Cir. 1969).

JETTON v. STATE, 435 So. 2d 167 (Ala. Cr. App. 1983)

KNIGHTEN v. STATE, 35 Ala. App. 524, 49 So. 2d 789 (1951)

MCGHEE v. STATE, 274 Ala. 373, 149 So. 24 5 (1963)

TARVER v. STATE, 492 So. 2d 328 (Ala. Cr. App. 1986).

WALDROP v. STATE, 424 So. 2d 1345 (Ala. Cr. App. 1982).

WEATHERSPOON v. STATE, 34 Ala. App. 450, 40 So. 2d 910 (1949)

WAS IT ERROR FOR THE TRIAL COURT TO DENY APPELLANT'S MOTION

FOR A RANDOM DRAW DOWN OF THE QUALIFIED JURY PANEL IMMEDIATELY

PRIOR TO THE MAKING OF PEREMPTORY STRIKES?

CODE OF ALABAMA, 1975, Sec. 12-16-100.

DID THE TRIAL COURT ERR IN ADMITTING INTO EVIDENCE THE BARREL

FROM A SAWED-OFF SHOTGUN FOUND AT THE HOME OF APPELLANT'S

GRANDMOTHER?

ANDERSON v. STATE, 362 So. 24 1296 (Ala. Cr. App. 1978)

CUNNINGHAM v. STATE, 22 Ala. App. 583, 118 So. 242.

HUMPHREY v. STATE, 370 So. 24 344 (Ala. Cr. App. 1979)

MCGUFFIN v. STATE, 178 Ala. 40, 59 So. 635 (1912).

MEANS v. STATE, 51 Ala. App. 8, 282 So. 2d 356.

RUSSELL v. STATE, 54 Ala. App. 452, 309 So. 2d 489 (1974).

TAYLOR v. STATE, 442 So. 24 128 (Ala. Cr. App. 1983)

WASHINGTON v. STATE, 56 Ala. App. 555, 323 So. 2d 738 (1975).

WILLIAMS v. STATE, 384 So. 24 1205, (Ala. Cr. App. 1980).

XIi.

XIII.

XIV.

IS THE ALABAMA DEATH PENALTY STATUTE UNLUNSTITUTIONAL AS

CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE CONSTITU-

TIONS OF THE UNITED STATES AND OF ALABAMA?

DID THE TRIAL COURT ERR IN DENYING APPELLANT'S MOTION THAT

THE APPELLANT RECEIVE TWO STRIKES FOR EACH ONE STRIKE FOR

THE STATE IN JURY SELECTION?

CODE OF ALABAMA 1975, Sec. 12-16-100.

U. S. CODE, Title 42.

WHEN COMPARED WITH SIMILAR CASES, THE DEATH PENALTY IS IN-

APPROPRIATE IN THIS CASE.

BUSH v. STATE, 431 So. 2d 555 (Ala. Cr. App. 1982)

CLISBY v. STATE, 456 So. 24 86 (Ala. Cr. App. 1982)

EVANS v. STATE, 361 So. 2d 654 (Ala. Cr. App. 1977).

EX PARTE BELL, 475 So. 2d 609 (Ala. 1985).

EX PARTE FLOYD, 486 So. 2d 1321 (Ala. 1986).

EX PARTE HARRELL, 470 So. 2d 1309 (Ala. 1985)

EX PARTE JEFFERSON, 473 So. 2d 1110 (Ala. 1985).

EX PARTE JONES, 456 So. 2d 380 (Ala. 1984).

EX PARTE KENNEDY, 472 So. 2d 1106 (Ala. 1985).

EX PARTE THOMAS, 460 So. 2d 216 (Ala. 1985).

LINDSEY v. STATE, 456 So. 24 383 (Ala. Cr. App. 1983).

LYNN v. STATE, 477 So. 2d 1365 (Ala. Cr. App. 1984).

RITTER v. STATE, 475 So. 24 266 (Ala. Cr. App. 1978).

EX PARTE DUREN, 507 So.2d (Ala. 1987).

EX PARTE GRAYSON, 479 So. 2d 76 (Ala. 1984).

EX PARTE HUBBARD, 500 So. 2d 1231 (Ala. 1986).

EX PARTE TARVER, 500 So. 2d 1256 (Ala. 1986).

EX PARTE THOMPSON, 503 So. 2d 887 (Ala. 1987).

EX PARTE WATKINS, 509.So. 2d 1065 (Ala. 1984).

xvi

SUMMARY OF TRIAL COURT RULINGS AND

Record Page No.

8C, RF10, RT-11,

9C, RT-11,

10C, RT-10,

11C,RT-16,

13C, RT-8

15C, 16C, RT-8

17C, RT-4, RT-S

19C

26C, RT-5S

27C, RT-S, RT-6, RT-24

28C, RT-7

40C, RT-22,

42C, RT-23,

43C, RT-313, RT-314

67-C, RT-320

68-C, RT-320

ACTIONS ADVERSE TO APPELLANT

SUMMARY

Motion in Limine denied, related to Nefendant's

possession of guns at other times.

Motion for case to be tried as non-Capital case

denied.

Motion for reduction of jury panel denied.

Portion of discovery motion denied.

Denial of Motion to enjoin Prosecutor from

utilizing his Peremptory challenges to oneiuee

blacks from jury panel.

Denial of Motion for additional Peremptory

challenges. |

Denial of Motion to prohibit state from using

it's Peremptory serthen to exclude Negroes

from jury.

Denial of Motion to prohibit death qualification

of prospective jurors or for separate jury for

Guilt and Punishment Phase.

Denial of Motion for separate juries for Trial

and Penalty Phases.

Denial of Motion for psychiatric evaluation.

Denial of Motion for individual Voir dire.

Denial of Motion for continuance.

Denial of Motion for change of verdict.

Denial of Motion to exclude State's evidence.

Refusal of proposed charge #22.

Refusal of proposed charge #23.

xvil

Record Page No.

69-C, RT-320

70-C, RT-320

86-C, RT-430, RT-431

87-C, RT-430, RT-431

88-C, RT-431

89-C, RT-431

116-C

117-C

RT-47, RT-101

RT-61, RT-62, RT-108

RT-66, RT-67

RT-69

RT-113, RT-114

RT-132

RT-138

RT-146

RT-147

RT-157, RT-158

RT-158

RT-190, 191, 212, 213

SUMMARY

Refusal of proposed charge #25.

Refusal of proposed charge #26.

Refusal of proposed charge #3 (Sentence phase).

Refusal of proposed charge #14 (Sentence phase).

Refusal of proposed charge neo (Sentence phase).

Refusal of proposed charge 6 ‘(Sentence phase).

Denial of post-trial Motion.

Denial of Motion based on Batson vs. Kentucky.

Denial of challenge for cause of prospective

juror Bradshaw.

Denial of challenge for cause of prospective

juror Gissandaner.

Excusal of prospective juror Mahone.

Denial of challenge for cause of prospective

juror Little.

Denial of challenge for cause of prosective

juror Sowardi.

Surtaining of state's objection to suggestion

of parole possibility for co-Defendant who

testified for State.

Overruling objection to Gory Photograph (ex. #3).

Overruling objection to witness characterization

of house as "ransacked".

Overruling objection t» Gory Photograph (Ex. #4).

Overruling objection to question.

Overruling objection to gun barrel's admission.

¥Y@e sé

Record Page No.

RT-195

RT- 196

RT- 203

RT- 240

RT-277 _

RT- 278

RT- 292

RT-308

RT- 309

RT-310

RT-318, RT-319

RT- 340

RT-353, 354, 355

SUMMARY

Sustained objection to defense question. (Witness

in trouble).

Sustained objection to defense question. (Other

criminal activities).

Sustained objection to defense question.

Overruled objection to question. .

Overruled objection to question.

Overruled objection to leading question.

Overruled objection to Gory Photograph. (Ex. #28).

Overruled objection to Gory Photograph. (Ex. *29).

Overruled objection to Gory Photograph. (Ex. #30).

Denial of Motion for directed verdict of

Acquittal.

Sustained objection to defense argument.

Denied Motion for mistrial.

(These are rulings made after remand and the references

are to supplemental record)

RECORD PAGE NO. ON REMAND

R-15 & 16

R-24 & 25

R-32 & 33

SUMMARY

The Trial Court refused to allow the

Appellant to cross-examine the District

Attorney concerning individuals not

struck by the District Attorney.

The Trial Court refused to allow the

Appellant to cross-examine the District

Attorney concerning individuals not

struck by the District Attorney.

The Trial Court ruled that the State

met its burden of proving that its

strikes were not racially motivated.

xix

STATEMENT OF FACTS

The defendant did not testify and did not submit testimony relating to the

tine of the offense. The following statement of facts (97-C through 104-C) is

taken from the Trial Court's finding of facts (without admitting the correctness

of name):

"On February 6, 1981, the body of Marie Driggers Smith, an elderly widow,

was found in her home located at 539 South Randolph Avenue in the City of Eufaula,

Barbour County, Alabama. The first law enforcement officer to arrive on the

scene, Captain Ted Dotson with the Eufaula Police Department, determined that

Mrs. Smith was dead and that because of the excessive amount of blood on her

body and near her body and because of the ransacked condition of the house, he

suspected foul play was involved. Law enforcement officers from the Alabama

Bureau of Investigation and the State of Alabama Department of Forensic Sciences

and the Barbour County District Attorney's Office were called to aid in the

investigation of this crime. Drawers had been pulled out and the contents

thereof strewn throughout the house.

all of these items."

"An autopsy was conducted on the body of the victim and the results revealed

that the victim was killed by a shotgun wound to the face. Additional findings

showed that the victim had superficial incise wounds at the left wrist and right

hand. Examination of the portions of the shell that was found in the body of the

victim revealed that the victim had been shot with a twenty gauge shot shell slug.’

"Gary Marcus Strong, an admitted accomplice to this crime, took the stand and

testified for the State.

Prior to testifying, Strong had pled guilty to Burglary

Attempts were made to lift fingerprints from

in the First Degree in connection with this crime and had been sentenced to thirty

years in the penitentiary. Strong related that in September of 1982 he learned

that he was wanted for questioning and that he turned himself into the Eufaula

Police Department shortly thereafter. His fingerprints had been found inside

the victim's home and he gave a confession to his participation in this crime

and implicated the Defendant, Fredrick Lynn, as the trigger man. Strong testified

that on Thursday, February S, 1981, the Defendant came to his house in

Chattahoochee Courts, a housing project for low-income families, is located

approximately two blocks from the victim's residence. He testified further that

he and the Defendant left his home shortly after 6:00 p.m. and went to Hardee's

to eat. After eating, Strong and Lynn went to Laurie Daniels' house, located in

Chattahoochee Courts, where Terry Green was visiting. Strong testified that Lynn

had told him that he had put a sawed-off shotgun in Terry Green's car and wanted

to pick it up and take it somewhere to sell it. Strong accompanied Lynn to the

Daniels’ residence and there Lynn took the sawed-off shotgun out of the trunk

of Terry Green's car. Strong testified the gun was sawed-off at both ends and

had tape around the stock. He testified that they left Chattahoochee Courts walking

cown South Randolph Avenue in the direction of town and toward the victim's house.

As they passed in front of the victim's house it was noted that a light in the

front room went off and Fredrick Lynn told Strong, "Let's stop here and check

this out."’ Strong then testified that a few moments later Fredrick Lynn took the

screen off a window in the front portion of the house and raised the window and

entered the house. At this time, Lynn told Strong to meet him at the back door.

Strong proceeded to the back door and a few moments later Lynn opened it and told

him to come inside. Strong testified that at this time Lynn had the sawed-off

shotgun held on the victim. Strong testified further that Lynn ordered the victim

that if she tried to escape again that he would kill her. Strong further testified

that shortly after this he thought he heard a car or saw the head! ights of a car

outside the house and went to the back door to look. He didn't see anything and

when he came back into the middle portion of the house Lynn told him to go in

the next room and turn the television up very loud. Strong testified that he did

so and after he had turned the volume up on the television he heard a gun shot

and ran out of the house. He testified that as he ran out the back door he looked

into the room where the Defendant and victim were and the Defendant was standing

over the victim with the shotgun pointed at her. Strong testified that he ran home

and hid the items that he had taken during the crime, these items included

a wristwatch, a ring and some old coins. After doing this, Strong proceeded to a

nightclub called the Casino Club where he met Fredrick Lynn and they joined Terry

Green and Herbert Bouyer. At about closing time, 1:30 a.m., Strong testified

that he, Lynn, Bouyer, and Green left the club together. He testified that he

was taken to his house first and that he got out to go home for the night. The

Defendant also got out at this point and went behind Strong's house and returned

to Green's car with a sawed-off shotgun in his hand."

"Investigator Earlie Dinkins of the Eufaula Police Department testified that

he conducted a consent search of the residence of Mrs. Rencie Lynn on the Gammage

Road, Eufaula, Alabama, on March 4, 1981. Mrs. Rencie Lynn is the grandmother

of Fredrick Lynn and evidence showed that Fredrick Lynn was living with her at

this address on March 4, 1981. During the search a sawed-off barrel from a twenty

gauge shotgun was obtained from a trash can in the carport area of the house and

a twelve gauge shotgun that had been sawed-off at both ends was also found."

"Terry Green testified that on February 5, 1981, he was a Senior at Eufaula

High School and attended school that day. He testified that he received a message

to pick up Fredrick Lynn at his grandmother's house after school and that he did

so. The evidence revealed that Fredrick Lynn had a blue sweater with something

wrapped in it when he came out of his house on February Sth, and got into Terry

Green's car. The Defendant got Green's keys and put the sweater and what was sub-

sequently revealed to be the sawed-off shotgun in the trunk of the car. Green

described the gun as being sawed-off on both ends and as having tape around the

“butt of the gn. Green testified that later in the day he and the Defendant went

to the playground area of Chattahoochee Courts where the Defendant got Green's

keys, opened the trunk and got out the sawed-off shotgun and was showing it off

to the people present at the playground. He also showed the people there that

he had ammunition for the gun in his possession. Green testified that they stayed

at the playground for approximately an hour and that he then went to visit his

- girlfriend, Laurie Daniels, at her residence. Before leaving the playground, Lynn

wrapped the gun back in the sweater and placed it back in the trunk of Green's

car. Green testified that later that evening, at approximately 8:00 p.m., Lynn

came to Ms. Daniels’ residence and got his car keys and went to the trunk. He

testified that when Lynn brought the keys back to him after going to the trunk

the Defendant was wearing the blue sweater in which the shotgun had been wrapped

earlier. Green further testified that at approximately 11:00 p.m. he left Ms.

Daniels' residence. Before leaving, Green went to his trunk to get out a water

bottle as he had leaking radiator, and when he opened the trunk noted that the

shotgun was not in the trunk. He testified that he went from Ms. Daniels' residence

to Hardee's where he picked up Herbert Bouyer and from there they proceeded to

the Casino Club. He testified that when he and Herbert Bouyer got to the Casino

Club, Gary Strong and Fredrick Lynn were already there and that Lynn and Strong

came over to where they were sitting and joined them at their table. Evidence

—

- revealed that the four left the Casino Club as it closed at approximately 1:30

a.m. and proceeded to Gary Strong's house. Green testified that Strong got out

to go home at this time and that Lynn got out also and told Terry Green to wait

for him as he had to go get something. He testified that he did not see where

Lynn went or what he had with him when he came back. From there evidence showed

that Green next took Bouyer to his car which was at Hardee's. From there Green

and the Defendant went to the Omelet Shoppe and had something to eat and then

proceeded to Gammage Road to take the Defendant home. As the Defendant got out

of the car at his residence at Gammage Road, he reached under the seat of the

car and pulled out the sawed-off shotgun and took it inside with him."

"Herbert Bouyer, who is currently in the Air Force and stationed in England,

testified that on February 6th, he went to Fredrick Lynn's residence to visit

Mrs. Rencie Lynn and Fredrick. He testified that he had a conversation with

Fredrick Lynn on this date af approximately 10:00 a.m. and that the subject of

the conversation was a sawed-off shotgun, which Lynn showed to Bouyer that day.

Bouyer described the gun as being sawed-off on both ends and having tape on the

stock. Bouyer testified that Lynn asked him to "take him somewhere to dispose

of the gun", and that he refused to do so."

ARGUMENT

THE TRIAL COURT ERRED IN FINDING

THAT THE DISTRICT ATTORNEY'S STRIKES

WERE NOT RACTALLY MOTIVATED.

Based on the decision of the United States Supreme Court

in the case, Batson vs. Kentucky, 106 S. Ct. 1712 (1986), the

Alabama Court of Criminal Appeals remanded the case to the

Circdit Court of Barbour County, Alabama.

On remand, the District Attorney stated reasons for the

use of each of his peremptory strikes on black veniremen. Some

of the reasons were as follows: (1) Juror related to a criminai:

(2) The juror lived in a particular area, (3) The juror was a

co-worker of a witness or other participant in the trial; and

(4) The juror knew one of the prosecution's witnesses and might

not believe that witness because of his bad reputation. (R-5

through R-14 Supplemental record).

In a small county (population wise) like Barbdour County,

the types of reasons given could be applied to the vast majority

of the population. Barbour County consists of two divisions,

and the Eufaula Division of the County consists of only about

16,000 people with about 14,000 being in Eufaula itself. The

Court refused to permit cross-examination of the District Attornev

as to how similar factors might have applied to jurors that he

did not strike; but it is submitted that the same types of reasons

could have been applied to any member of the venire.

If _ there were only two or three blacks on the venire, it

could easily be coincidence that all of them were eliminated

by the prosecution. However, when all 11 blacks out of a

qualified panel of 38 are eliminated, it simply cannot be

coincidence, but is clearly racial discrimination supported by

excuses. The test should be results oriented. Black v. Curb,

165 F.2d 165 (1972). Reasons for peremptory strikes are so

vague and numerous that race-independent excuses can always

be provided - one must look at the results. Otherwise, the

holding of the U. S. Supreme Court in Batson vs. Kentucky,

106 S. Ct. 1712 (1986) can be reduced to pure sham.

ARGUMENT

THE TRIAL COURT ERRED IN REFUSING

TO PERMIT APPELLANT'S ATTORNEY TO

CROSS-EXAMINE THE DISTRICT ATTORNEY

AS TO VENIREMEN NOT STRUCK BY DISTRICT

ATTORNEY.

In order to judge the sincerity of the race-independent

reasons given by the District Attorney for his strikes of

blacks, it is essential that the District Attorney be ex-

tensively examined concerning iether similar reasons might

not have been applicable to white jurors who were not struck

by the District Attorney. This line of examination was cut

off completely by the Trial Court. (R-15, R-16, R-24, R-25,

& R-26). By cutting off this line of questioning, the Trial

Court deprived itself of critical information needed to per-

form its"duty to determine if the Defendant has established

purposeful discrimination." Batson vs. Kentucky, 106 S. Ct.

1712 (1986).

ARGUMENT

Sas.

THE TRIAL COURT ERRED IN FAILING TO

ORDER THAT THE PROSECUTION NOT USE ITS

PEREMPTORY STRIKES IN A MANNER TO

EXCLUDE ALL BLACK PERSONS FROM JURY DUTY.

For many years, there was no restriction whatsoever on

the prosecution's use of its peremptory strikes. Then the

rule developed that a defendant could attack the prosecution's

use of peremptory strikes to exclude jurors because of race

only if there was a pattern of so using peremptory strikes.

Swain v. Alabama, 380 U. S. 20? (1965). Im Batson v. Kentucky,

106 S. Ct. 1712 (1986), the U. S. Supreme Court ruled that re-

quiring proof of a pattern posed an unrealistic burden on de-

'fendants. The Court ruled that it was no longer necessary for

a defendant to show a pattern. It is only necessary to show

only that the prosecution excluded all blacks in the case at bar.

At that point, the turden shifts to the prosecution to show jus-

tifications for the strikes other than race.

Based on the holding of the United States Supreme Court in

the case, Griffith v. Kentucky, No. 85-5221 (Jan. 13, 1987), that

Batson applied retroactively, the Alabama Court of Criminal Appea.s

ordered the case remanded to the Circuit Court of Barbour County

for a hearing to determine whether the State's use of its strikes

was racially motivated. The State provided superficial, vague

justifications not subject to any real means of attack. The

defendant was precluded from examining the District Attorney con-

cerning whether the same justifications would not have been

equally applicable to blacks not struck.

This late justification of strikes, coming months after

jury selection is just not sufficient to meet constitutional

standards - especially in view of the fact that the defendant

warned the Court that the State, unless enjoined, would get

an all-white jury. Based on the past experience in serious

cases, this prophecy required little insight.

If the Trial Court had granted defendant's motion and

told the District Attorney that he must leave 2 or 3 blacks

on the jury, there would be no problem in trying to analyze

the District Attorney's conscious and subconscious motives

in eliminating veniremen.

An even better solution would lt» to have some sort of

proportional representation in counties with signigicant

minorities - upon Motion of defendant. For example, if a

county is one-third black, then he should be allowed to have

four black jurors, if he wishes. The four could be selected

from among all of the blacks qualified to sit on the case,

while the other eight could be selected from the balance of

the qualified veniremen. Each attorney could keep his reasons

for striking jurors secret, and noone would be put in the aw-

kward position of attacking the honesty, integrity, or fairness

of a prosecutor.

ARGUMENT

IV.

THE TRIAW COURT ERRED IN FAILING TO SUSTAIN

CHALLENGE FOR CAUSE OF INDIVIDUAL WHO WAS

SUPERVISOR OF LAW ENFORCEMENT OFFICERS AT

TIME SUCH OFFICERS WEKE INVESTIGATING THIS

CASE.

In the course oi qualifying jurors, prospective juror Little

Gisciosed tnat, et the time of the alleged homicide, he was Mayor

of the City of Eufauia and supervisor of police officers investiga-

ting the crime. (RT-68-69). Althougin Mayor Little denied that his

former supervisory reiationship over the witness would affect his

ability to be fair, it 1s submitted that tile existence oi sucn a

celationship itseif estabdlistes impiied bias. McAdory v.State,

37 Ala. App. 349, 58 So. 2d 68 (1953); Brown v. State,37 Alia. App.

516, 74 So. 2d 273, affd. 261 Ala. 696, 74 So. 24 277 (1954)

Research discloses no case involving a challenge for cause under

nese exact circumstances. However, the case, Welch V. Cicy of

Simmingham, 389 So. 2d 521 (Ala. Cr. App. 1960), is quite instructive

on the principles involved.

In Welcn, che defendant was tried and convicted in city court

of seliing alconolic beverages without a iicense. He was convicted

ana appeaied for a trial ge Nova before a circuit court jury. when

the jury was being quaiified, defendant chalieuged for cause an

ecployee or tne city's engineering department. The defendant was

convicted; and his conviction was reversed by the Court of Criminal

Appeals because of the Trial Court's faiiure to sustain tne challenge

for cause, odased on the juror's employment.

In the present case, the City of curaula is not officially a

rarty since tne city cannot officialiy prosecute felonies. How-

ever, ic is a “city case" in the sense chat the investigation was

sommenced by city forces and two of the prosecution's key witnesses

were city employees (at present and at the time of the offense).

«hen the investigation was made, prospective juror Little was Mayor

and supervised the City policemen who were participating in the in-

vestigation. Alchough the name "City of Euraula" is missing from

tne caption, the City's interest in conviction is at least as strong

-~Ss in the Welch case.

Moreover, in the Weicn case, the prospective juror was in no

way involved in enforcement of Liquor laws; while, in the present

vase, tue prospective juror had been mayor una, as such, supervised

2ll uspects of clty government, including law-enforcement.

It is tnerevore error for the trial court to hsve overruled

the cnallenge for cause of Mayor Little. The error, of course, is

ot harmless. This error on the part of the trial court warrants

reversal of Lynn's conviction. -

ARGUMENT

Vv.

THE TRIAL COURT ERRED IN PERMITTING

PROSECUTION WITNESS TO GIVE OPINION

THAT VICTIM"S HOUSE HAD BEEN “RANSACKED"

In direct examination, the District Attorney asked witness

A.G. Tew (an investigator): "What condition did you find the

rooms in that house to be?" Sgt. Tew responded: "They were

ransacked." (RT-146).

Sgt. Tew's answer was not responsive to the District Attorney'

question. According to Webster's New World Dictionary, “ransack"

is a verb meaning "1. to search thoroughly; examine every part

in searching. 2. to search through for plunder; pillage." Thus,

instead of describing the scene, Mr. Tew gave his opinion of what

happened at the scene prior to his arrival, i.e., someone had

searched it thoroughly. His opinion as to the cause of the room's

condition was clearly inadmissable. McElroy's Alabama Evidence,

3 ed, §128.09; Standard Cooperage Co. v. Dearman 204 Ala. 553,

86 So. 537 (1920); Central of Georgia Ry. Co. v. Robertson, 206

Ala. 578, 91 So. 470 (1922); Douglass v. Central of Georgia Ry.Co.,

201 Ala. 395, 78 So. 457 (1918); and Sovereign Camp of Woodmen of

the World v. Ward, 196 Ala. 327, 71 So. 4O4 (1916).

The objection was made immediately upon the illegal testimony.

The objection was fully justified: "Mr. McKinnon: (Interposing)

Your Honor, I object to the word "ransacked". It is a conclusion

for the jury. It is a characterization of the activity that caused

it (the mess)." (RT-146). The objection was overruled without

explanation.

The Trial Court clearly erred in not sustaining the objective an?

6iving a curative charge. The error cannot be regarded as harmless.

under the indictment (1-6) it was incumbent upon the State to prove

a burglary as a part of the intentional killing incident. The

plundering or ransacking would strongly support the State's position

that there was a burglary. The witness’ invasion of the province

of the jury meant that the jury did not have to form its own conclu-

sion from a detailed description of the scene; and this invasion

‘

effectively deprived the defendant of the right to a trail by jury

on a key factual issue.

ARGUMENT

VI.

THE TRIAL COURT ERRED IN FAILING TO SUSTAIN

OBJECTION TO FOLLOWING QUESTION TO PROSECU-

TION WITNESS: "PRIOR TO SEEING THEM(INVESTI-

GATORS) DID YOU KNOW THEY WERE COMING?"

It has been a fundamental principle in Alabama trial practice

that a party may not attempt to bolster a witness’ credibility until

that witness’ credibility is attacked. In the trial of the case at bar,

ts principle was violated repeatedly over the stated objections of

defendant. The trial court permitted an investigator to describe

in detail his efforts to locate a witness and to explain that the

witness did not know that he was coming. (RT-157-158). The Trial

Court allowed the District Attorney to ask a witness: "Prior to

seeing them (investigators) did you know they were coming?" (The

answer was "No." ) RT-278. Witness Green was given an opportunity

to deny bias before his being accused of bias. RT-277.

The most flagrant example of improper bolstering of a witness’

testimony was the District Attorney's question to Terry Green,

"Did you know they were coming?" This bolstering of the witness'

testimony violates a long-established principle of Alabama law.

Trammell v. Disciplinary Bd. of the Alabama State Bar, 431 So. ed

1168 (Ala. 1983); Bill Steber Chevrolet-O}dsmobile, Inc. v. Morgan,

429 So. 2d 1013 (1983); Stokley v. State, 254 Ala. 534, 49 So.

2d 284 (1951; and Loveman, Joseph, and. Loeb v. McQueen, 203 Ala.

260, 82 So. 530 (1919). Since Terry Green, the witness being

bolstered, was a key witness for the State, it cannot be said that

the Trial Court's error was harmless.

ARGUMENT

VII. art.

LYNN WAS CONVICTED ON THE

THE TRIAL COURT ERRED IN FAILING TO SUSTAIN UNCORROBORATED TESTIMONY OF AN ACCOMPLICE.

OBJECTION TO FOLLOWING QUESTION TO PROSECU-

TION WITNESS: "DO YOU KNOW SHE WAS KILLED

ON FEBRUARY Sth OF THAT YEAR?"

The only direct evidence of Frederick Lynn's alleged involvement in the

Perhaps the most elementary rule of trial practice is the one -killing of Marie Driggers Smith was the testimony of Garrett Marcus Strong, an

forbidding the leading of witnesses on direct examination. (Code admitted accomplice. (RT-221-266). This testimony was supposedly corroborated

of Alabama, 1975, § 12-21-138). It is reversible error for a by the testimony of witnesses, Terry Green and Herbert Seuper and by the dis-

trail court to abuse its discretion by allowing a highly prejudi- covery of a sawed-off barrel at the home of Anpellant by law-enforcement

cial leading question. Oakley v. State, 135 Ala. 29, 33 So. 693 (1903). officers several weeks after the homicide. (RT-266-303 and 189-191).

lus

The accomplice, Garret Marcus Strong, and the corroborator, Terry Green,

proved to be quite flexible in conforming their testimonies to the needs of the

prosecution, in spite of having previously made statements that were quite in-

consistent with each other. In his statement dated September 23, 1982, Strong

said that he had already left the house and was back in the yard when he heard

a shot fired. (23E-2SE). In his testimony, he said that he was still in the

house when he heard the shot. (RT-234. In his statment, Strong said that

after the shooting, he did not see Frederick Lynn until the next day. (23E-25SE).

In his testimony, he stated that he saw Frederick later that same night at the

Casino Club. (RT-23S). In his statement, Strong stated that Appellant had

taken the coins, ring, and watch from Mrs. Smith and that Appellant told Strong

the next day about having those items. (23E-2SE). In his testimony, on the

other hand, Strong stated that he personally had taken those items and gave

those items to Frederick Lynn the next day. (RT-237-238). There are numerous

other inconsistencies between Strong's statement and his testimony, but these

are the major ones.

When confronted with these and other inconsistencies on the witness stand,

Strong said, "... me and my lawyer had straightened all that out." (RT-184, 187

in 4 Div. 183). At the last trial he again indicated his lawyer helped him

straighten out his story. (RT-243). Of course, these changes were necessary to

cake Strong's statement correspond to that portion of Terry Green's statement

in which Terry indicated that he later on the night of the homicide saw Frederick

tynn and Garrett Marcus Strong together at the Casino Club. (26E-29E).

Sa TT cocsenaton’s great corroborator, Terry Green, gave a statement

end testimony which were inconsistent with each other in many ways. In his

statement, Terry Green was unable to pinpoint the time any better than ''some-

time during the first part of 1981."" (26E-29E). In his testimony at the first

trial, he narrowed it down to February 5S, 1981. (Rt-239 in 4 Div. 183). At

the first trial,he said that he was able to pin it down because he remembered all

of the kids at school talking about the homicide the dary after it happened.

(RT-252-253 in 4 Div. 183). School records show that he was not even at school on

that day when all of the kids were supposedly talking about the murder. (RT-315-

17). In his statement, Terry Green stated he left school between 1:00 and 2:00,

while in his testimony at the first trial, he stated he left school at about

twelve noon. (26E-29E, RT-61 from 4 Div. 183). In his testimony at the second

trial, he narrowed it down to the day Mrs. Smith was killed. (RT-267). As with

Strong, law mforcement people helped him get his statement straightened out.

(RT-261 in 4 Div. 183). At the second trial, he said other witnesses helped

him straighten his story out (RT-288). In his testimony at the first «cial,

Terry Green stated that, when he left the Casino Club, he left Garrett Marcus

Strong and the Appellant, Frederick Lynn, standing outside the club; but, after

additional conferring with law-enforcement officers, he decided he did not

leave them standing outside the club but instead gave them a ride home.

(RT-274, 26-29E). In addition, at the time he gave his statement he did

not "remember" going to Hardees and did not remember seeing Appellant,

Frederick Lynn, get a sawed-off shotgun from under the front seat of the car

(RT-272 in 4 Div. 183). During one part of his testimony, Terry Green might

actually have been telling the truth, and that is when he said that he person-

ally did not know a thing about what happened at the home of Marie Driggers Smith.

(RT-273 in 4 Div. 183). In this case, we face a significant possibility of a

miscarriage of justice. There is a strong possibility that Terry Green knew

exactly what happened at the home of Marie Driggers Smith--because he might well

have been there himself. Could Terry Green's great flexibility in his testimony

have possibly resulted from the State's promise of immunity and $10,000.00 in

reward money? (35 and 36E). Clearly, reasonable doubt exists in this case as

a matter of law.

The other great corroborator is Herbert Bouyer. Unfortunately, Appellant

did not have a statement from Bouyer to compare with his testimony. Many of

the changes made in the testimony of Strong and Green were obviously made to

correspond with the testimony of Bouyer. There were two facets to Bouyer's

testimony, one being his testimony that he, Terry Green, Garrett Marcus Strong,

and Appellant, Frederick Lynn, all left the Casino Club together on the night of

February 5, 1981. (RT-294). The other facet of Mr. Bouyer's testimony was

that Appellant, Frederick Lynn, asked Bouyer on February 6, 1981, for help in

getting rid of a gun. (RT-296-297). He was unable to provide any description of

the gun other than its being sawed-off and having tape around the stock. He

knew nothing about the gauge. (RT-296-297). In connection with Herbert Bouyer's

testimony, there arose one of the strangest coincidences to occur during the

trial. The very same records which proved that Terry Green was absent from school

on February 6, 1981, when he testified he heard everybody talking about the

homicide, showed that Herbert Bouyer was present at school at the time he was

supposedly talking with Appellant, Frederick Lynn, about getting rid of the gun.

(R-315-217). Would that be that we had a statement from Bouyer to compare with

his testimony!

Appellant ‘does not question the truthfulness of the only remaining corro-

borative testimony which consists entirely of the fact that law-enforcement

officers discovered gun parts at the residence of Frederick Lynn several weeks

after the homicide. (RT-189-190). However, since those gun parts could not

in any way be identified as being related to the weapon causing the death of

Marie Driggers Smith, that evidence cannot be considered to be corroboration.

Naturally, if one believes the testimony of Garrett Marcus Strong (for-

giving the inconsistencies), it would constitute evidence of Appellant's guilt,

even though Strong denied having seen the fatal shot. (RT-233-234). Fortun-

ately, however, the law requires that the testimony of m alleged accomplice be

corroborated. Garrett Marcus Strong is just the kind of individual for which the

corroboration statute was written. He got caught; he did not want to face the

full, just consequences of his crime; and, in order to escape the full, just

consequences of his crime, he put the finger on someone else.

If you try to ignore the gross inconsistencies in the State's corrobora-

tive testimony and interpret it in a manner most favorable to the State, you

have the following matters that could be considered corroborative to a certain

extent:

1. The Appelant, Frederick Lynn, was with the accomplice within

two or three hours before the alleged homicide.

2. The Appellant was with the alleged accomplice two or three hours

after the alleged homicide.

5. The Appellant was in possession of a sawed-off shotgun, unknown gauge,

two or three hours before the alleged homicide.

4, The Appellant was in possession of a sawed-off shotgun, unknown gauge,

within two —y hours after the alleged homicide.

5. On the day after the alleged homicide, Appellant requested the assist-

ance of Herbert Bouyer in disposing of a sawed-off shotgun, gauge unknown.

6. About four weeks after the alleged homicide, a barrel from a 20-gauge

shotgun was discovered at Appellant's residence. but no testing could certify

that the barrel came from the particular gun with which Marie Driggers Smith

was shot.

In connection with Frederick Lynn's having been seen with the alleged accomplice.

Garrett Marcus Strong, before and after the alleged homicide, the first two ‘corro-

Sorating" matters, it should be noted that Terry Green and very like:~

other individuals would have been with Frederick Lynn before and 2fte:

the homicide. People who run in the same circles are very likely to run into each

other several times in a night, expecially in places like the public housing project

and juke joints like the Casino Club. Frederick Lynn and Garrett Marcus Strong

were not seen together at unusual times and places, or in proximity of the homicide,

considering the layout and traffic pattern of Eufaula. Gooney's house where

Terry Green said he was with his girlfriend, Garrett Marcus Strong, and Appellant,

Frederick Lynn, was on Randolph Street -- the second longest North-South route in

town. (RT-141). To get to Hardees, Kentucky Fried Chicken, and numerous other

nearby businesses as well as most of the rest of Eufaula from the project, one

has to cross or go up or down Randolph Street. Terry Green testified that,

Frederick Lynn and Garrett Marcus Strong then left Gooney's house in the project,

but that he did not know where they went. (RT-272). However, he could not even

see in the direction of the home of Marie Driggers Smith.

The next two "corroborating" matters consist of Appellant's alleged

possession of a sawed-off shotgun before and after the homicide which is not

truly corroboration of his commission of the homicide. First, that possession

was not shown to have been exclusive. Any number of people could have had access

to the gun described by Terry Green. (RT-266-290 and 26-29E) . Second, other than

the "sawed-off" description, there was no descriptive or ballistic

information to identify it with the fatal weapon. Finally, the only

evidence that the fatal weapon was a sawed-off shotgun was Garrett Marcus Strong's

testimony.

The fifth "corroborating" matter is Frederick Lynn's alleged request that

Herbert Bouyer help him dispose of a sawed-off shotgun, the day after the death

of Marie Driggers Smith. This likewise is not "corroboration" of Frederick Lynn's

Supposed participation in the homicide. Again, there is no description other

than '$awed-off''and nothing to related it to the death of Marie Driggers Smith.

Herbert Bouyer's testimony could be used to show an awareness of guilt in

general but could not show guilt of a specific crime. In addition, the setting

was too remote in time and place to otherwise connect Frederick Lynn with the

death of Marie Driggers Smith.

The sixth and final matter of "corroboration" was the sawed-off barrel, Dut

its discovery four weeks later far from the death scene provides no corroboration.

Gauge is the only thing to identify it with the fatal weapon.

If one is looking for corroboration of Frederick Lynn's possession of

illegal sawed-off shotguns, then there would be sufficient corroboration; but, if

one is looking for corroboration of Garrett Marcus Strong's testimony that

Frederick Lynn shot Marie Driggers Smith, then there is absolutely no corrobor-

ation. There is nothing other than Garrett Marcus Strong's testimony that links

Frederick Lynn to the alleged murder of Marie Driggers Smith.

Although the corroboration matters submitted are fairly consistent with

67h; ”y >. seca

Garrett Marcus Strong's testimony, they are also equally consistent with Frederick

Lynn's innocence.

In the present case, as in Mills v. State, 4 08 So.2d 187

(Ala. Cr. App. 1981), "there is no item of evidence, standing alone and apart from

the accomplice's testimony explaining that evidence which tends to connect the

appellant with the crime." The six corroborative matters in this case are

virtually meaningless without Strong's testimony explaining how it all fits

together. That falls far short of complying with the requirements of the law.

"The tendency of the corroborative evidence to connect

accused with the crime, or with the commission thereof,

must be independent, and without the aid, of any testimony

of the accomplice; the corroborative evidence may not depend

for its weight and probative value on the testimony of the

accomplice, and it is insufficient if it tends to connect

accused with the offense only when given direction or in-

terpreted by, and read in conjunction with, the testimony

of the accomplice."" 23 C.J.S. Criminal Law, Section 812

(b) (1961).

The Trial Court failed to follow the rule announced by the Court in

Sorrell v. State, 249 Ala. 292, 31 So. 2d 82 (1947):

"The corroboration necessary to support the testimony of

an accomplice must be of some fact tending to prove the

guilt of the accused. It is not sufficient if it is equivocal

or uncertain in character and must be such that legitimately

tends to connect the defendant with the crime. It must be of

substantive character, must be inconsistent with the innocence

pc ng accused and must do more than raise a suspicion of

This rule has been reiterated again and again by both this Court and the Supreine

Court. Caldwell v. State, 418 So.2d 168 (Ala. Cr. App. 1981), Cert. Quashed

Aug. 27, 1982; Lindhorst v. State, 346 So.2d 11 (Ala. Cr. App. 1977), cert.

denied, 346 So.2d 18 (Ala. 1977); Kimmons v. State, 343 So.2d 542 (Ala. Cr.

App., 1977); Anderson v. State, 44 (Ala. App. 388, 210 So.2d 436, 1968); Harris

v. State, 420 So.2d 812 (Ala. Cr. App., 1982); and McCoy v. State, 397 So.2d 577

(Ala. Cr. App. 1981), cert. denied, 397 So.2d 589. tind Canis

5 pa : ,

“Evidence which logically and rationally: is as consistent with innocence

as with guilt does not corroborate the testimony of an accomplice." McCoy v.

State, 397 So.2d 577, (Ala. Cr. App., 1981); cert denied, 397 So.2d S89 (Ala.,

1981); also Ladd v. State, 39 Ala. App. 172, 98 So.2d 56, cert striken, 266

(Ala. 586, 98 So.2d 59,1957); and Sorrell v. State, 249 (Ala. 292, 31 So2d 82,

1947).

The evidence in Frederi¢k Lynn's case compels the same conclusion that the

Supreme Court reached in Sorrell v. State, supra:

"True, there are circumstances in the case which might be

calculated to arouse the curious mind to wonder why they

occurred, if defendant were wholly innocent of wrongdoing,

but when considered in the light of the governing princi;les

of law above deduced, it is clear the evidence was wanting

in the legal requisites necessary to sustain the conviction.

The conviction rested on surmise, speculation and conjecture,

and the ends of justice require us to enter a reversal..."

If the rule that corroborative evidence must do more than raise a suspicion of

guilt applies to any case, it applies to Frederick Lynn's case. ‘Suspicion cannot

be heaped upon suspicion to create a reasonable inference of guilt.'"' McCoy v. State,

supra.

Clearly then, suspicious conduct on the part of the defendant is not, in

itself, sufficient corroboration of an accomplice's testimony. Peacock v. State,

369 So.2d 61 (Ala. Cr. App., 1979); also Lindhorst v. State, supra. To the

contrary, in order to determine whether the requisite corroboration exists, a

court must go through a process of elimination or subtraction --- taking away

the evidenceof the accomplice and determining whether the remaining testimony

is sufficient: to connect the defendant with the commission of the°crime.—

Caldwell ‘ State, supra; McCoy v. State, 397 So.2d 577 (Ala. Cr. App.), writ

denied, 397 So.2d S89 (Ala., 1981); Woods v. State,, 387 So.2d 313 (Ala. Cr.

App., 1979); Kimmons v. State, supra; Keller v. State,, 380 So.2d 926 (Ala. Cr.

App.), writ denied, 380 So.2d 938 (Ala., 1980); and Leonard v. State, 459 So. 2d

970 (Ala. Cr. App., 1984), cert. quashed Nov. 21, 1984,

According to the Caldwell Case:

"Being in the company of an accomplice in proximity in

time to #he commission of the crime is not always suffi-

cient corroboration to comply with statutory demands.

Rather, when an accomplice and an accused are seen to-

gether in somewhat unusual places and tiems in proximity

to the locus of the crime, which occurs at an unreasonable

hour, the requirements of corroboration are met."

In the present case, we are not dealing with "unusual places", "unusual times",

'Sproximitity to the locus of the crime", or "unreasonable hour"'. To the contrary,

in the present case, the corroborators can place defendant only in very usual

p laces at very usual times for defendant and his peer group.

In the case, Booker v. State, 477 So.2d 1388 (Ala. Cr. App,, 1985), the Court

of Criminal quoted with approval the following from 23 C.J.S. Criminal Law,

Section 812 (b) (1961):

"The tendency of the corroborative evidence to connect accused

with the crime, or with the commission thereof, must be independent,

and without the aid, of any testimony of the accomplice; the

corroborative evidence may not depend for its weight and probative

value on the testimony of the accomplice, and it is insufficient if

it tends to connect accused with the offense only when given direction

or interpreted by, and read in conjunction with, the testimony

of the accomplice."

In the present case, the corroborative evidence does depend entirely upon the

testimony of the accomplice for its weight and probative value. Without Strong's

testimony, the evidence is scattered, erratic, and at best creates suspicion.

In the case, Thompson v. State, 374 So.2d 388 (Ala., 1979), the Alabama

Supreme Court stated that there are two types of corroborative evidence. The

first type consists of facts which support the testimony of the accomplice without

regard to defendant's alleged participation in the criminal activity. The second

type is evidence which tends to connect the defendant with the commission of the

of fe ‘he Supreme Court ruled that it is the second type of corroboration

that is essential to support an accomplice's testimony. In the present case, it

is that second type of corroboration that is totally absent.

Furthermore, it has been repeatedly held that corroborative evidence must do

more than raise a suspicion of guilt. Thompson v. State, 374 So2d 388 (Ala., 1979);

McCoy v. State, 397 So.2d 577 (Ala. Cr. App.) cert. den. 397 So2d 589 (Ala., 1981);

Anderson v. State, 44 (Ala. App. 388, 21 So.2d 436, 1968); and Deerman v. State,

486 So.2d 515 (Ala. cr. App., 1986). In the present case, it is doubtful that

the corroborating evidence by itself would even raise a serious suspicion.

In the present case, if all of the hearsay and other indirect evidence were

tc be replaced by the most direct evidence of the same matters, there would still

be no proper corroboration of Garrett Marcus Strong's testimony. The Trial Court

should have rendered a Judgment acquitting defendant.

ARGUMENT

THE TRIAL COURT

SHOULD HAVE DECLARED A MISTRIAL AFTER

DISTRICT ATTORNEY STATED IN ARGUMENT

THAT HE BELIEVED WHAT WITNESS

SAID DURING INVESTIGATIVE

INTERVIEW.

In final closing argument, the District Attorney interjected his own

testimony into evidence. (RT-353). He indicated that he was present during

an interview of co-defendant and witness, Garrett Marcus Strong -- a matter —

not in evidence, although the witnesses' written statement was: (23-26E).

‘when that kid laid it on the line on September 23, 1982, without any promising

or any help from anybody and told me who pulled that trigger, I believed it."

Immediately, the jury's attention was diverted from the real question:

Garrett Marcus Strong's credibility. Instead, their attention was shifted to

the credibility of the District Attorney. He might as well have told the jury:

"You know me, you trust me, my witness is telling the truth."

The Trial Court recognized the impropriety of the argument and even

attempted to give curative instructions. (RT-354-355). The prejudicial

nature of the remark was so severe, however, that no curative instruction would

be abduunte.

In Tarver v. State, 492 So.2d 328 (Ala. Cr. App., 1986), the District

Attorney (who prosecuted the case) took the witness stand and gave sworn testimony

concerning the voluntariness of defendant's confession. The Alabama Court of

Criminal Appeals ruled that such conduct was so clearly erroneous and so

severely prejudicial that the conviction would have to be reversed, even though

defendant did not object. In that case the prosecutor at least was under oath

and subject to cross-examination, unlike the present case. In addition, in the

oo ee

present case, an objection and a motion for mistrial were made.

‘

The type of argument/testimony that we have in the present case has been

repeatedly condemned. Waldrop v. State, 424 So.2d 1345 (Ala. Cr. App., 1982);

McGhee v. State, 274 (Ala. 373, 149 So. 2d 5, 1963); Brown v. State, 393 So.2d 515

(Ala. Cr. App., 1981); Hall v. U.S., 419 F. 2d 582 (S Cir., 1969); Adams v. State,

280 (Ala. 678, 198 So.2d 25S, 1967); Knighten v. State; 3S (Ala. App. 524, 49

So.2d 789, 1951); and Weatherspoon v. State, 34 (Ala. App. 450, 40 So.2d 910,

1949), “7

The District Attorney's statement of personal belief and test imony concerning

witness' interview greatly exceeded the bounds of legitimate argument and denied

cefendant a fair trial; the error was so prejudicial that it could not be cured

by subsequent instructions of the trial court. Jetton v. State, 435 So.2d 167

(Ala. cr. App., 1983); Blue v. State, 246 (Ala. 73, 19 So.2d 11; and Dubose v.

State, 148 (Ala. 560, 42 So. 867).

ARGUMENT

IT WAS ERROR FOR om TRIAL COURT TO DENY

APPELLANT'S MOTION FOR A RANDOM DRAW DOWN

OF THE QUALIFIED JURY PANEL IMMEDIATELY

PRIOR TO THE MAKING OF PEREMPTORY STRIKES.

Regardless of the black-white ratio on qualified jury

panel immediately prior to peremptory strikes, the number of

whites needs to exceed the number of blacks only by twelve

for the prosecution to be able to exclude every black from

jury service. Thus, the larger the panel from which peremptory

strikes are made, the better the opportunity is for the

prosecution to peremptorily remove all blacks from jury duty.

with the racial ratios on the Barbour County jury panel, a

random reduction of that panel to 36, the statutory minimum,

(Code of Alabama, 1975, Section 12-16-100), would have made

it impossible for the State to strike every black. (RT-54).

-efendant filed a timely motion for such a reduction, and the

motion was denied. (10-C, RT-10). The Trial Court's denial

of Appellant's Motion for a random draw down of the panel to

a level that would allow at least some blacks to serve on the

jury was in violation of the due process and equal protection

clauses of Amendment XIV to the United States Constitution

and Sections I and VI of the Alabama Constitution.

In view of the positions of some courts which permit any

sype of rationalization by the District Attorney as compliance

with Batson, it is especially important to minimize the ability

cf attorneys to affect the racial composition of juries.

ARGUMENT

XI°

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE

THE BARREL FROM A SAWED-OFF SfOTGUN FOUND AT THE

HOME OF APPELLANT'S QRANDMOTHER.

Over the Appellant's objection, the Trial Court allowed

into evidence gun parts and testimony concerning gun parts

discovered at the home of Appellant's grandmother four weeks

after the alleged homicide. (RT-190, 191, 212, 213). Although

caste were from a gun of the same gauge as the fatal weapon,

they were not shown to have come from the fatal weapon. They

were not shown to have ever been in Appellant's possession

but were merely found at a house in which Appellant and other

people resided. The barrel was never shown to have been connected

with the slug removed from the victim. The record does not

indicate that the shotgun from which the fatal bullet was fired

Or any part of it was ever found. The record does not indicate

that the gun from which the barrel was sawed was ever found.

At the same location where the 20-gauge barrel was found, another

barrel of a different gauge was found. (RT-193).

The State's expert witness, Lonnie Ray Harden, was unable

to say anything about the barrel other than that it came off

of a 20-gauge shotgun. (RT-215-216). He also testified that

the slug removed from the body of Marie Driggers Smith was

a 20-gauge shotgun slug. (RT-217). Twenty-gauge shotguns

and 20-gauge shotgun shells are just much too common to link

the barrel to the homicide.

This 1S a situation similar to that found in the case,

Anderson v. State, Ala. Cr. App., 1978, 362 So. 2d 1296. In

the Anderson Case, the Trial Court admitted into evidence a

.375 magnum pistol which was discovered four months after a

murder and four blocks from the murder scene. In that case,

the only evidence touching its relevancy or materiality was

that such a weapon could have been responsible for some of

the injuries to the deceased and testimony that one of the

assailants often carried a similar weapon. In the present

case, the fact that the barrel was a 20-gauge barrel and that

the deceased was shot with a 20-gauge slug shows merely that

the barrel could have come off of the weapon causing Mrs. Smith's

death. Other testimony showed that the Appellant On pecasion

carried a sawed-otf shotgun. The weapon was found much much

further than four blocks from the scene of the homicide (several

miles, as a matter of fact). The only significant difference

between the Anderson Case and the present case is that the

Appellate Court in the Anderson Case considered the admission

of the: weapon to be harmless. In the present case, considering

the overall lack of evidence presented by the State, admission

of the gun barrel was quite prejudicial and could not in any

sense be considered as harmless.

The holding by the Alabama Court of Criminal Appeals in

the Anderson Case is clearly consistent with its holding in

the case Washington v. State, 56 Ala. App 555, 323 So. 2d 738

(1975). In Washington Case, the Court held that a weapon

should not be admitted into evidence unless there is evidence

tending to show that it was used by defendant at time of the

alleged homicide. A mere possibility is clearly inadequate.

Although there might be some tendency to consider the

objection to the gun barrel as being a chain of custody matter,

the real question is one of relevancy or materiality. The

issue is hot what might have happened to the barrel after it

was aissoveree at Mrs. Rencie Lynn's carport; but. instead,

the issue is whether it has been established that the barrel

is in any way connected with the gun which caused Mrs. Smith's

death. Clearly it could have been, but so could any other

barrel from any other 20-gauge shotgun.

In many cases dealing with admissibility of weapons considered

by the Appellate Courts, the decisions were that the weapons

were admissible; but, in those cases allowing the evidence,

the weapon was specifically connected with the crime. In Cunningham

v. State, 22 Ala. App. 583, 118 So. 242, the Court held that

a hammer found in defendant's workshop was admissible because

it had been specifically identified as the hammer used in an

assault. In Russell v. State, 54 Ala. App. 452, 309 So. 2d

489 (1974), the Appellate Court held that the Trial Court properly

admitted a butcher knife into evidence based on evidence that

the deceased was stabbed with a butcher knife and that a butcher

knife was found on defendant's person immediately after the

attack. In McGuffin v. State, 178 Ala. 40, 59 So. 635 (1912),

”

the Alabama Supreme Court ruled that the Trial court properly

allowed a pistol in evidence where a witness specifically identified

it as being either the actual weapon or identical to a weapon

used in a homicide. In Williams v. State, 384 So.2d 1205

(Ala. Cr. App. 1980), a shotgun was admitted into evidence

only because ballistics testing positively indicated that it

fired the shell found at the scene of the murder.

In ruling that the Trial Court properly admitted into

evidence a shotgun barrel found at the home of the Appellant's

grandmother, the Court of Criminal Appeals overlooked several

important consideration.

First, assuming that the barrel was in fact from the gun

that fired the fatal slug, it is clear that it was removed

prior to the homicide. (R 151, 160, 242). Therefore, the

barrel was not a part of the gun causing Mrs. Smith's death.

The barrel itself had nothing to do with the homicide. None

of the cases cited by this Court stood for the proposition

that a gun part is admissable into evidence if it was removed

from the suspected weapon prior to the crime. Taylor v. State,

442 So. 2d 128 (Ala. Crim. App.) cert. denied, 442 So. 2d 128

(Ala. 1983); Humphrey v. State, 370 So. 2d 344 (Ala. Crim.

App. 1979); Means v. State, 51 Ala. App. 8, 282 So. 2d 356,

cert. denied, 291 Ala. 792, 282 So. 2d 359 (1973); Williams

v. State, 384 So. 2d 1205 (Ala. Cr. App. 1980). There was

no evidence whatsoever that a sawed-off barrel was in any way

connected with Mrs. Smith's death.

Second, if one ignores the fact that the barrel was not

used to cause Mrs. Smith's death, the connection between the

homicide and the alleged homicide weapon cannot be established

with the certainty indicated in the cited cases. In the Williams

Case, a ballistics expert determined that the fatal rounds

had been fired from the weapon in question; in the present

case, such a determination was impossible. (R 145). In Means

v. State , supra., this Court affirmed the trial court's admission

of a bloody knife found at a murder scene; the present case

Geals with a barrel found a considerable distance from the

nomicide scene and having no markings or stains that would

have ever placed it at the scene. In Humphrey v. State, supra.,

the shotgun admitted into evidence was identified by various

witnesses as being in the defendant's possession at the time

of the crime; in the present case, no witness was able to connect

tynn with the barrel at or near the time of the homicide.

In Taylor v. State, supra., the forensic expert was able to

identify the make and inodel of the murder weapon but he was

mot able to say that a particular weapon of that make and model

was the one from which the shot was fired. The opinion does

mot indicate where and how the gun was recovered. In the present

case, the expert could only say that the slug was twenty-gauge;

re could not give the make or the model. In addition; the

barrel was discovered much later and at a considerable distance

from the homicide scene. The connecting factors found in the

Taylor Case are just no present.

In Frederick Lynn's case, the failure of the Trial Court

to sustain Appellant's objection to the admissibility of the

barrel and the failure of the Trial Cou:t to grant defendant's

motion to exclude that testimony were error and were clearly

prejudicial to the defendant in that there was absolutely no

other physical evidence tending in any way to link Appellant,

Frederick Lynn, to the killing of Marie Driggers Smith. This

error on the part of the Trial Court alone is sufficient grounds

for reversing the conviction of Frederick Lynn.

ARGUMENT

XII

THE ALABAMA DEATH PENALTY STATUTE

IS UNCONSTITUTIONAL IN THAT IT CONSTITUTES

CRUEL AND UNUSUAL PUNISHMENT IN VIOLATICN

OF THE CONSTITUTIONS OF THE UNITED STATES AND OF ALABAMA

The question of the constitutionality of the Alabama Death

Penalty Statute has not been developed herein. Appellant is

aware that this Court has been presented with every conceivable

argument that the Alabama Death Penalty Statute is

unconstitutional in that it constitutes cruel and unusual

punishment, forbidden by both the United States and Alabama

Constitutuions. For the purpose of preserving the issue for

any further appeals which might be taken in State or Federal

Court, the Appeilant does hereby contend that the Alabama Death

Penalty Statute is unconstitutional per se aid that it is

unconstitutuional as it is specifically applied to the present

case. However, Appellant cannot provide any further

enlightenment on these issues and begs the Court to consider

these propositions as they have been presented in other death-

penalty cases.

ARGUMENT

XIII

THE TRIAL COURT ERRED IN DeNYING APPELLANT'S MOTION

THAT THE APPELLANT RECEIVE TWO STRIKES FOR EACH ONE

STRIKE FOR THE STATE IN JURY SELECTION.

The alleged homicide in the present case took place in

1981; and, at that time, the law allowed the defense two

strikes for each one strike of the prosecution. (Code of

Alabama, 1975, Section 12-16-122). In 1982, the Statute was

amended to allow the defendant only one strike for each strike

by the prosecution. (Code of Alabama, 1975, Section 12-16-1000,

Act No. 82-221).

The Legislature in passing a law in 1982 affecting crimes

committed in 1981 enacted a “ex post facto" law in violation

of Section IX of the United States Constitution and Section

VII and XXII of the Alabama Constitution. Furthermore, under

the due process clauses of Amendment XIV to the United States

Constitution and Section VI of the Alabama Constitution, a

person may not be convicted of a crime unless the evidence

establishes his guilt beyond a reasonable doubt. Because it

is human nature to assume that one who has been officially

accused of a crime is guilty as charged, the two-for-one strike

is essential to an effective presumption of innocence and to

an effective standard that a defendant must be proven guilty

beyond a reasonable doubt in order to be convicted.

Furthermore, the legislative act which abolished the two-

for-one strike provision was not cleared by the U.S. Department

of Justice as required by the Voting Rights Act of 1965, U.S.

soe

Code, Title 42. Any statute potentially affecting the

political power of Negroes must be pre-sereened by the U.S.

Justice Department. It goes without saying that 4 member of

a minority race attempting to get members of his own race on

a jury would better able to do so with the old two-for-one

strike system.

ARGUMENT

XIV

WHEN COMPARED WITH SIMILAR CASES, THE DEATH

PENALTY IS INAPPROPRIATE IN THIS CASE.

Research discloses no death penalty case in the past decade

which is in any way comparable to the present case.

In Evans v. State, 361 So. 2d 654 (Ala. Cr. App. 1977),

affirmed in part and reversed in part, 361 So. 24 666 (Ala.

1978), cert. denied, 99 S. Ct. 1267, 440 U.S. 9301, small

children were present when the murder was committed; Evans

was under sentence of imprisonment at the time of the murder;

and Evans had been involved in over 250 robberies and

kidnappings. In Ritter v. State, 375 So. 2d 266, (Ala. Crim.

App. 1978), affirmed, Ex parte Ritter, 375 So. 2d 270 (Ala.

1979), again small children were present during the murder;

and again there was a long record of crimes of violence. In

Bush v. State, 431 So. 2d 555, (Ala. Crim. App. 1982),

affirmed, 431, So. 2d 563, (Ala. 1983), the defendant was on

a crime spree during which he robbed at least two convenience

stores and shot three people, two of whom died from their

wounds. In addition, the defendant had a prior record of a

crime of violence. Also, the crime was committed for the

purpose of eliminating an eye witness to a murder.

In the prior appeal of this case (4 Div. 183, Lynn v.

State, 477 So. 2d 1365, (Ala. Cr. App. 1986), the Court of

Criminal Appeals compared the present case with Clisby v.

State, 456 So. 2d 86 (Ala. Cr. App. 1982), aff'd in part, rev'd

in part, 456 So. 2d 95 (Ala.), on remand, 456 So. 2d 98 (Ala.

ee. App.), on remand 456 So. 2d 99 (Ala. Cr. App.), aff'd,

456 So. 2d 102 (Ala. Cr. App. 1983) aff'd 456 So. 2d 105 (Ala.

1984). That comparison, it is submitted, is likewise

inappropriate. Clisby beat a fifty-eight year old crippled

man to death with an axe. The victim in the present case had

a quick death from a single gunshot wound. Clisby had a prior

conviction for murder. Lynn has ao significant prior history

of criminal activity. Clisby was an adult at the time of his

crime, while Lynn was a juvenile.

The Court of Criminal Appeals also compared the present

case with the case Lindsey v. State, 456 So. 2d 383 (Ala. Cr.

App. 1983), aff'd, 456 So. 2d 393 (Ala. 1984). Lindsey has

a significant history of prior criminal activity, while Lynn

has no such history: Lindsey was an adult at the time of the

crime, while Lynn was a child. Lindsey both shot and stabbed

his victim, each sufficient to cause death, while the victim

in the present case died of a single gunshot wound.

Below is a brief synopsis of other recent cases showing

imposition of death sentences for crimes far more heinous that

the crime with which Lynn was charged.

Ex parte Floyd, 486 So. 2d 1321 (Ala. 1986); Victim was

dragged from car, robbed, beat, kicked, stomped, tied to a

tree, and run over by a car. The defendant had two prior

convictions for robbery. He was an adult at the time of the

homicide.

Ex parte Bell, 475 So. 2d 609 (Ala. 1985): Victim was

tied up and stuffed into the trunk of a car. Victim was hauled

into the woods, then was pushed into a trench “bad aes hee ‘x

twice in the head.

Ex parte Jefferson, 473 So. 2d 1110 (Ala. 1985): Victim

Sustained deep multiple lacerations. Death was slow.

Circumstances showed defendant to be an unusually depraved

man.

Ex parte Kennedy, 472 So. 2d 1106 (Ala. 1985): Victim

was killed slowly by suffocation with a pillow. Victim was

raped repeatedly, beaten and cut. This was one of the most

heinous crimes in our state's history.

Ex parte Harrell, 470 So. 2d 1309 (Ala. 1985): The victim

was a police officer in the line of duty. The defendant had

a bad criminal record. The defendant was unrepentant and was

seen clapping and siniling immediately after the homicide.

Ex parte Phomas, 460 So. 2d 216 (Ala. 1984): The victim

had been shot 6 times while she was nude. There were numerous

injuries to her body while she was still alive. Sne had been

tortured, raped, sexually abused, and mutilated. The defendant

had a long reccrd of criminal history. This also was one of

the most vile crimes in the state's history.

Ex parte Grayson, 479 So. 2d 76 (Ala. 1984): Defendant

burglarized, beat, terrorizea, raped, and suffocated to death

a helpless co-year old lady.

Ex parte watkins, 509 So. 2d 1065 (Ala. 1984): Defendant

pad prior record of crime of violence. In the capital felony,

ne terrorized a store full of people before killing a store employee.

Ex parte Duren, 507 So. 2d 121 (Ala. 1987): There were two

victims, #@ae who survived and one who did not. Both victims were

Fae, :

tied up and hauled around in the trunk of a car before being shot

repeatedly.

Ex parte Thompson, 503 So. 2d 887 (Ala. 1987): Defendant

robbed and kidnapped victim, hauled her around in her automobile,

put her in a well, and shot ehr repeatedly.

Ex parte Tarver, 500 So. 2d 1256 (Ala. 1986): Defendant

was On parole and nad been previously convicted of crimes. The

victim was snot three times.

Ex parte Hubbard, 500 So. 2d 1231 (Ala. 1986): The defendant

had a prior murder conviction. The defendant shot victim three

times with a significant amount of time between each shot; and

the victim obviously suffered much pain and agony.

Ex parte Jones, 456 So, 2d 380 (Ala. 1984): The victim

was shot three times. He had also been struck by a blunt

ebject. Defendant was on parole at time of homicide and had

a bad prior record for crimes of violence.

Clearly, none of these cases are similar to the present

case. 1. Lynn is accused on only one homicide. 2. No

children were present. 3. Lynn had no record of crimes of

violence. 4. Lynn was not under sentence of imprisonment «40% °

5. There is no evidence that Lynn was attempting to eliminate

an eyewitness to a crime. 6. The victim was not tortured,

raped, or mutilated.

Considering the above factors together with the fact that

Lynn was only 16 at the time of the alleged homicide, certainly

this is not a case in which the death penalty is the

appropriate punishment.

In addition-to comparing Lynn's case with “similar cases",

look at the different sentences for two possible accomplices

in the same case. Because of a plea-bargaining deal, the only

man who is known to have been at the scene of the crime

received a thirty-year sentence---and, based solely upon his

word, another person might suffer the death penalty. (Garrett

Marcus Strong was caught by his fingerprints and also

confessed). Is it right to allow a confessed killer to live

and, based solely on his word, put another person to death?

“t

CERTIFICATE OF SERVICE

I hereby certify tnat I have this 1g. te _ day of

September, 10%. served copies of the foregoing Brief by

placing copies or said Brief in the United States Mail, postage

prepaid, ana aacressed to the following:

oe ey 2 aon .

mi; ~~’ ‘donorable Don Siegelman

Attorney General

Alabama State House

Montgomery, Alabama 36130

~ '

/ J Wi fpuarrne

Z Cong ht

Donald J.”’McKinnon

Attorney for Appellant

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.