# Petition for Writ of Certiorari — Britain v. Alabama

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1560%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 486 U.S. 1008

## Text

87-1612 ae

SUPREME COURT NUMBER

IN THE SUPREME COURT OF THE UNITED STATES
1987-88 TERM

JOHN E. BRITAIN,
PETITIONER,
VS.
STATE OF ALABAMA,

RESPONDENT.

PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF ALABAMA
NO. 85-399

THOMAS M. HAAS

255 SAINT FRANCIS STREET
MOBILE, ALABAMA 36602
205/432-0457

ATTORNEY FOR THE
PETITIONER

QUESTIONS PRESENTED FOR REVIEW

DID THE TRIAL COURT'S DENIAL
OF THE PETITIONER'S MOTION
NEW TRIAL WITHOUT AN VIDENTIARY
HEARING AND AN OPPORTUNITY
TO PRESENT’ EVIDENCE OF OUTSIDE
INFLUENCES UPON WHICH THE JURY
VERDICT WAS BASED IN PART DEPRIVE
THE PETITIONER OF A FAIR TRIAL
AND DUE PROCESS OF LAW UNDER
THE SIXTH AND FOURTEENTH AMEND-
MENTS TO THE UNITED STATES

CONSTITUTION?

DID THE PROSECUTORIAL MISCONDUCT
AT TRIAL AND IN ARGUMENTS,
AND BY UNWARRANTED PROSECUTORIAL
ATTACKS ON DEFENSE COUNSEL,
DEPRIVE THE PETITIONER OF A
FAIR TRIAL AND DUE PROCESS
OF LAW UNDER THE SIXTH AND

FOURTEENTH AMENDMENTS TO THE

1

|
om

LIST OF PARTIES

The varties to this proceeding
are John E. Britain and the State

e ., }
of Alabama.

1il

TABLE OF CONTENTS

QUESTIONS PRESENTED FOR REVIEW . 1
LIST OF PARTIES .. ++ «© «© « « Lili
TABLE OF CONTENTS ..+ + «2 « » iv

TABLE OF AUTHORITIES

OPINIONS DELIVERED IN
COURTS BELOW . . «© «© © © «© © © « vil

GROUNDS UPON WHICH SUPREME
COURT JURISDICTION [IS INVOKED . vii

CONSTITUTIONAL PROVISIONS

AND STATUTES ...++e+s+ee « Lx
STATEMENT OF THE CASE .... « l
ARGUMENT .. «ec ceeceee es 8
CERTIFICATE OF SERVICE .... « 25

APPENDIX ..++-eee-ere ee @ A-1

TABLE OF AUTHORITIES

CASES PAGE
Allen v. State, 494 So. 2d

777 (Ala.Cr.App. 1985) 10
Berger v. United States, 295 U.

S. 295 U.S. 78, 88, 79 L.

Ed. 1314, 55 S.Ct. 629

(1935) eo ee 22,23
Britain v. State, So.2d ‘

(Ala.Cr.App. 1987) owas
Napue v. Illinios, 60 U.S. 264,

3 L.Ed.2d 1217, 79 S.Ct.

1173 (1959) 2 23
Smith v. Phillips, 455 U.S. 209

102 S.Ct. 940, 71 L.Ed.2d 11,12,

78 (1982) A ae 13

Tanner v. United States, 483 U.S.
,107 S.Ct. , 97 L.Ed.
2d 90 (1987) e-e-s8 e

United States v. Chiantese,
582 F.2d 974 (Sth Cir. 1978)

United States v. 620 F.

2a 446 (5th Cir.

Forrest,
1980)

United States v. Windom, 510 F.
2d 989 at 994, cert. denied
423 U.S. 863, 96 S.Ct. 121,

46 L.Ed2d 91 (1975)

11

20

CONSTITUTIONAL AND STATUTORY
AUTHORITY

Code of Alabama, 1975,
§13A-8-2 oe

Code of Alabama, 1975,
§€36-25-5

28 U.6.C. 1257(3)

U.S. CONST. Amend. VI

U.S. CONST. Amend. XIV

OPINIONS DELIVERED IN COURTS
BELOW

The affirmance o£ Petitioner's
conviction by the Court of Criminal
Appeals of Alabama is reported as

Britain Vv. State, So. 2d ;

(Ala. Cr. App. 1987). The Supreme
urt of Alabama denied the petition
Or a writ of certiorari filed by

Petitioner without opinion. The opinion

affirming Petitioner's conviction

is set forth in its entirety infra

GROUNDS UPON WHICH SUPREME COURT
JURISDICTION IS INVOKED

The statutory provision which
confers upon this Court jurisdiction
to review the judgment of decree
in question by writ of certiorari
is 28 U.S.C. §1257(3), which provides

that judgments or decrees rendered

by the highest court of a State in
which a decision could be had may
be reviewed by the Supreme Court
by writ of certiorari, where any
title, right, privilege or immunity
is specially set up or claimed under

the Constitution of the United States.

Vili

CONSTITUTIONAL PROVISIONS AND
STATUTES

UNITED STATES CONSTITUTION
AMENDMENT VI

In all criminal prosecutions,
the accused shali enjoy the right
to a speedy and public trial, by
an impartial jury of the state and
district wherein the crime shall
have been committed, which district
shall have been previously ascertained
by law, and to be informed of the
nature and cause of the accusaticn;
to be confronted with the witnesses
against him; to have compulsory process
for obtaining witnesses in his favor,
and to have the assistance of counsel

for his defense.

UNITED STATES CONSTITUTION
AMENDMENT XIV

Section 1. All persons born

ix

Or naturalized in the United States,
and subject to the jurisdiction thereof,
are citizens of the United States
and of the State wherein they reside.
No State shall make or enforce any
law which abridge the privileges
or immunities of citizens of the
United States; nor shall any State
deprive any person of life, liberty
or property, without due process
of law; nor deny to any person within
its jurisdiction the equal protection
of the laws.

Section 5. Tne Congress”7 shall
have power to enforce, by avpropriate

legislation, the provisions of this

article.

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Britain's motion for new trial
alleged "the verdict was. based on
outside influences" among other grounds.
The motion was denied without an
evidentiary hearing and opportunity
to present evidence of the outside
influences. (R. 655-658, 660).

During trial, the state attorney
questioned key prosecution witness,
John L. Maples, regarding a conversation
he had with Britain's defense attorney
prior to trial. This testimony was
objected to as immaterial. (R. 61).
Maples testified over defense objections
that he had contacted Britain's defense
attorney, Thomas M. Haas, to discuss
his Situation regarding the Alabama
State Docks investigation. The witness

testified Mr. Haas asked "you do

Know that I am John Britain's attorney."

Maples responded he did not and would

need ancther attorney. (R. 9/7).

Maples also testified he delivered
several loads of topsoil and shells
to Britain's home and sent the payment
invoices for the materials to the
Alabama State Docks. (R. 45- 57).

Britain's defense counsel requested
the State turn over any prior statements
of witnesses testifying at trial.
The State has voluntarily turned
over statements of witnesses prior
to trial which were contradictory
to the witnesses' trial testimony.
(Re. 169-175, 277-297).

Defense character witness Marion
Martin, Sr. was questioned repeatedly
as to whether or not he had 0been
drinking. The State's attorney remarked
he smelled of alcohol. Objections
were sustained. (R. 300-304).

A potential state witness, Henry

3

1d been seen talking to jurors

ae reported to eme Court. Mr
lenied conversing with jurors

| stated an individua

id left the Courthouse had bee

rlkina ¢t Miron e, th. 315-316).

F by the State's attorn
to. Objection was overrul

). The witness was asked

id had defense counsel Thomas
“write 1 letter to the State

"

jators about this case.
yn was sustained. (R. Le?

-fenss attorneys objected

Bill Wasden stated the jury did not
hear testimony from one of Britain's
neighbors who had been referred to in
other testimony. Objection was
sustained. (R. 490). Wasden argued
Britain "had (docks' workers) under
his thumb, he practically had them as
indentured slaves. Something that is
part of our history." Objection that
the argument was an improper emotional
appeal to the jury, which included
five black persons, was overruled. (R.
497-498). Wasden argued Britain
"threatened (docks' employees),
threatened them with bodily harm." (R.
495). Despite sustained objections
during direct questioning, Wasden
argued defense witness Marion Martin

"walked in here reeking of alcohol,

could not remember where he lived

~e-". The trial court responded to
defense objection by stating the jury
would form its own impressions and
decision. (R. 501-502). Finally,
Wasden argued the evidence heard by
the jury was "the tip of the iceberg
over there at the Docks." Objection
was sustained and the jury instructed
to disregard.

Final closing argument for
the state was given by Assistant
Attorney General Don Valeska. Valeska
argued he wanted the jury "to see how
far those slime bags would go...".
Objection was sustained. (R. 547-549).
He argued ". . . you reckon Adolph
Hitler ever had him a farty foot boat
- « « you reckon Adolph Hitler and
Jerry Tew and those guys, they're the
ones that got the power .. . the only

6

difference between us and Jerry Tew
and his Nazis, we get a jury. . .do
you reckon Adolph Hitler used a jury."
Objection was sustained. (R. 551-554).
Valeska further argued defense witness
Jerry Tew, an Alabama State Docks’
employee, would be "out there
building" a boat slip at the State
Docks. Objection was overruled. (R.
556). He argued investigations) and
meetings were conducted in secret
because of talk about throwing people
in the river. (R. 558). Finally,
Valeska argued “you reckon those guys
that work out at the State Docks and
paying for their yachts . . . sports

cars ..e.- homes at Gulf Shores. ..".

Objection was sustained. (R. 558-559).

ARGUMENT

Ee THE TRIAL COURT'S DENIAL OF THE
PETITIONER'S MOTION FOR NEW TRIAL
WITHOUT AN EVIDENIARY HEARING AND AN
OPPORTUNITY TO PRESENT EVIDENCE OF
OUTSIDE INFLUENCES UPON WHICH THE JURY
VERDICT WAS BASED IN PART DEPRIVED-THE
PETITIONER OF A FAIR TRIAL AND DUE
PROCESS OF LAW UNDER THE SIXTH AND
FOUPTEENTH AMENDMENTS TO THE UNITED
STATES CONSTITUTION.

The Petitioner's motion for new
tcial was denied by the trial court
without affording Petitioner any
opportunity to be heard and present
evidence of the grounds for new trial
alleged in the motion, including the
grounds that the verdict was based on

outside influences. (R. 655-658, R.

660, Appendix A-21).

During trial of the Petitioner,
it was brought to the trial judge's
attention that a potential witness for
the state and another unknown
individual had been seen talking to
jucors. The potential witness, Henry
Scott, denied this, Stating to the

court that he had not spoken with

jurors. The other individual had left

the courthouse. FF 315-316). In
2ddition, numerous instances of
prosecutorial misconduct occurred

before the court including an effort

by the state's attorney to present for

the jury's consideration irrelevant
and nighly prejudicial testimony
concerning a conversation prior to
trial between the state's witness,
John Maples, and defense attorney,

Thomas M. Haas. (R. 61, R. 96-97).

These and other objectionable

matters were made the subject of a
motion for new trial, however, the
Petitioner was not afforded any
opportunity to present evidence of the
outside influences’ upon which the
verdict allegedly was based.

Under Alabama law, defendant is

entitled to an evidentiary hearing on

aq motion for new trial where it
appears that jurors might have
considered extraneous facts which

might have improperly influenced their
verdict. Allen v. State, 494 So.2d 777
(Ala.Cr.App. 1985). A presumption of
prejudice arises when the trial judge
learns of such outside influences and
his complete failure to hold a hearing
has been held to constitute an abuse

of discretion and reversible error.

= &
1

I hereby certify that [I have
this day of November, 1986
served a copy of the foregoing on
the Hon. Charles Graddick, Attorney,
by depositing a copy of same _ in
the United States mail, properly

addressed and postage prepaid.

BAYLESS E. BILES

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1560%3A1. Public record. Not legal advice.