Petition for a Writ of Certiorari — Cordle v. Alabama

wart ; Supreme Court, U.S,

. SUPREME COURT, U. & eit D

: OCT 4 1974

IN THE

‘ MICHAEL KOUAK, JR., CLERK

_ SUPREME COURT OF THE UNITED STATES

i OCTOBER TERM, 1974

wo. 94-371

DAVID RANDLE CORDLE,

Petitioner,

vs.

DES AG SARS BAG INGE BOAO A

THE STATE OF ALABAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

AND THE COURT OF CRIMINAL APPEALS

OF ALABAMA

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Frank W. Riggs

Counsel for Petitimer

P. O. Box 1047

Montgomery, Alabama

36102

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1974

No.

DAViD RANDLE CORDLE,

Petitioner,

vs.

THE STATE OF ALABAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF ALABAMA

AND THE COURT OF CRIMINAL APPEALS

OF ALABAMA

This is a Petition to review the de-

cisions of the Supreme Court of Alabama

and the Court of Criminal Appeal of

Alabama for denying the Petitioner, David

Randle Cordle a free copy of his prelim-

inary hearing transcript and for affirm-

ing the decision of the Circuit Court of

Montgomery.

ey de

OPINIONS BELOW

The original decision in this case

was rendered by the Circuit Court of

Montgomery County, Alabama, Fifteenth

Judicial Circuit. The Court of Criminal

Appeals of Alabama affirmed the decision

of the Circuit Court of Montgomery County.

The Supreme Court of Alabama denied

Petitioner's petition for Writ of

Certiorari. Applications for rehearing

were also denied by the respective courts.

It is anticipated that the opinion

rendered by the Court of Criminal Appeals

of Alabama will be reported in Alabama

Appellate Reports and in Southern Reporter,

Second Series.

JURISDICTION

The decisions of the Alabama Court

of Criminal Appeals and Supreme Court of

Alabama, to which Petitioner requests

Writ of Certiorari, were rendered on the

9th day of April, 1974, and on the 20th

day of June, 1974, respectively. Appli-

cation for rehearing in the Alabama Court

of Criminal Appeals was denied on the

21st day of May, 1974, and denied by the

Supreme Court of Alabama on the 8th day

of July, 1974.

The jurisJiction of this Court is

invoked pursuant to Supreme Court Rule,

Part VY. Jurisdiction in Writ of

Certiorari, 19 (1) (a):

Where a state court has de-

cided a federal question of

substance not theretofore de-

termined by this court, or

has decided it in a way pro-

bably not in accord with

applicabie decisions of this

court.

QUESTION PRESENTED

Do the due process and equal pro-

tection clauses of the Constitution of

- the United States require that an indi-

gent defendant be provided a free trans-

cript of.a preliminary hearing on a charge

of rape where testimony is given at that

hearing by the alleged victim of the rape,

who is the only witness who says that a

crime was committed by the defendant?

STATUTES INVOLVED

Title 15, Sec. 135, Code of Alabama (Re-

comp. 1958):

The evidence of the witnesses

examined, both for the state

and for the defendant, must

be reduced to writing by the

magistrate, or under his dir-

ection, and signed by the

witnesses respectively.

(This statute was repealed after this

Court's decision in Roberts v. LaVallee,

389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d

41 (1967), by Act No. 1106, General Acts

of Alabama, 1969, approved September 12,

1969.)

STATEMENT OF THE CASE

At approximately 8:00 o'clock p.m.

on November 24, 1971, Glenda Lee Bolen

left her apartment, where she lived with

her mother and brother, and traveled to

the home of Capt. and Mrs. Robert Geil

for the purpose of babysitting the Geil's

two small children (R. 40). About 9:00

o'clock p.m., on the same evening, Glenda

helpec the two children into their beds

and commenced reading a magazine and

watching television (R. 41). Sometime

shortly thereafter, a male person entered

the Geil's apartment, approached Glenda

from her backside, placed his arms and

hands around her head and demanded that

she quietly walk out of the apartment

(R. 42). Once outside of the apartment,

the male person ordered Glenda to get in

an unidentified parked automobile and to

keep her head on the seat without any un-

necessary movement. Glenda was subse-

quently driven to a cirt road where she

was raped and thereafter returned to the

apartment complex from which she had pre-

viously been taken (R. 43-47).

Petitioner, David Randle Cordle,

was initially questioned by police offi-

cers from the Montgomery Police Departmert

on the afternoon of December 27, 1971, at

his place of employment in Wetumpka,

Alabama (R. 55). After answering in-

quiries concerning an incident which

occurred on December 24, 1971, Randy was

transported to Montgomery Police Head-

quarters where interrogation of various

incidents, including the rape of Glenda

Bolen mentioned hereinbefore, continued

(R. 56-57). After four (4) hours of

rigorous, nonstop interrogation (R. 60),

Randy was compelled to sign a "waiver of

rights form" (R. 64) and allegedly con-

fessed to a series of different crimes,

including the rape of Glenda Bolen. Not-

withstanding the fact that Randy alleg-

edly made the confessions however, he

was not actually placed under arrest un-

til the next day, December 28, 1971

(R. 65). !

A preliminary hearing was held on

January 12, 1972, at which time, appointed

defense counsel, William P. Haney, Jr.,

made a timely request that the accused be

provided with a free transcript, or a

reasonable substitute, of all pertinent

testimony given therein (R. 3). The re-

quest for a free copy of the preliminary

hearing transcript was made due to

Randy's financial inability to pay for a

court reporter and the critical importance

of having a permanent record of the pre-

liminary hearing for the purpose of

"freezing" testimony, discovery and

impeachment. Randy's request for a copy

of the preliminary hearing transcript was

denied.

During the preliminary hearing,

Glenda Lee Bolen, the only eyewitness to

the alleged crime, testified, and with no

record cf her testimony, Randy was bound

over to the grand jury of Montgomery County

and subsequently indicted for rape. The

grand jury indictment was returned on

February 17, 1972.

Prior to arraignment, Randy's

appointed defense counsel moved the Circuit

Court of Montgomery County to quash the

grand jury indictment on the grounds that

the presiding judge at the preliminary

hearing refused to provide the accused

with a copy of the preliminary hearing

transcript. Appointed counsel further

moved the Court to grant the accused a new

preliminary hearing with a court reporter

ready and available to make the requested

transcript. Counsel also averred in his

motion that the Defendant's preliminary

hearing involved a series of crimes

charged against the Defendant and that

the testimony was extensive, lasting sev-

eral hours and involving several alleged

confessions, both written and oral. The

Motion to Quash was argued ore tenus be-

for the Presiding Judge of the Criminal

Division of the Circuit Court of Montgomery

County, and subsequently denied (R. 3, 4).

Arraignment proceediugs were con-

ducted on February 22, 1972, and Randy

Cordle pleaded not guilty to the alleged

charges (R. 26-30).

On April 13, 1972, Mr. William

Haney (having been appointed as an

Assistant District Attorney) withdrew

as the court appointed attorney in this

case, and the Honorable Sam W. Taylor was

appointed to represent Randy in Mr. Haney's

absence (R. 10). After Mr. Taylor's

appointment, the request for a free copy

of the preliminary hearing transcript was

renewed, but again the request was denied.

Present counsel has been employed by rela-

tives of Petitioner since the trial of the

case.

On June 6, 1972, Randy was given a

jury trial on the charge of rape, with the

Honorable Frank Embry, Supernumerary Judge,

Fifteenth Judicial Circuit, presiding

(R. 12). During the course of trial,

defense counsel objected to the introduc-

tion of the alleged oral confession, men-

tioned above, on the grounds that the con-

fession was obtained illegally (R. 70).

The objection was overruled and a motion

for a mistrial was denied (R. 71).

Counsel for the defense, also objected to

the introduction of a written confession

and moved for a mistrial (R. 73). But

again, both the objection and the motion

for a new trial were denied (R. 73).

“Sar yar

During the trial, counsel for the

Defendant called Dr. Wallace Sidney

Marshall, a prominent psychiatrist, to

testify that Randy was unable to distin-

guish between right and wrong at the time

of the commission of this particular

crime. Dr. Marshall testified that his

diagnosis of Randy Cordle was one of

schizophrenia with paranoid tendencies

(R. 110-117). The defense also intro-

duced a report from Bryce Hospital, a

state supported mental institution, in

reference to the accused's legal sanity

(R. 107). Dr. Marshall was requested to

give his expert opinion as to the speci-

fic medical conclusion set forth in the

medical report, viz., whether or not the

accused could distinguish between right

and wrong at the time he committed the

alleged offense. The District Attorney

objected to the admission of such testi-

mony, however, and the objection was

sustained (R. 120). Interestingly enough,

although the report from Bryce Hospital

had previously been admitted into evi-

dence, Dr. Marshall, a competent expert

in psychiatry, was not allowed to make

comment om the report (R. 121, 122).

At the conclusion of the trial, the

jury found Randy guilty of rape and fixed

his punishment at ninety-nine (99) years

and one (1) day in the state penitentiary |

(R. 134). |

La eee

REASONS FOR GRANTING THE WRIT

It is generally understood that a

preliminary hearing is not recognized as

a criminal prosecution nor a criminal

trial, but rather, an integral judicial

inquiry to determine whether there is

reasonable ground to believe that a

crime-has been committed and whether

there is probable cause to believe the

defendant committed the named crime. It

is imperative to remember however, that

the very existence of the preliminary

hearing is a matter of state discreation,

inasmuch as the federal constitution

makes no provision for such inquiry, Lem

Woon v. Oregon, 229 U.S. 586, 33 S.Ct.

783, 57 L.Ed. 1340 (1912). In fact, it

is historically recognized that the grand

jury may successfully bring an indictment

against an individual without the exist-

ence or operation of the preliminary

hearing, see, 21 Am.Jur.2d, Criminal Law

Sec. 442-451 and 22 Corpus Juris Secundum,

Criminal Law, Sec. 300 et. seq.

In varying and diverse forms, prelim-

inary hearing statutes currently exist in

at least 45 states, plus the Virgin

Islands and Puerto Rico, and after a

cursory examination of the respective

state statutes, it can be readily observ-

ed that the purposes and procedures of

each statute vary aimost as widely as

the number of states invoived. But re-

gardless of the differing views, it is

true that the primary purpose of the

preliminary hearing is to relieve the

eae | eee

accused of a potential trial when tnere

exists no merit to the complaint,to elim-

inate and narrow duplicated charges, to

perpetuate testimony, and to provide a

forum to establish bail.

In Alabama, statutes concerning the

preliminary hearing are found at Tit. 15,

Sec. 128 et. seq. Code of Alabama (recomp.

1958) and the following has been written

on this particular topic:

A preliminary hearing or exam-

ination is not a trial in its

ordinary sense nor is it a

final determination of guilt.

It is a proceeding whereby an

accused is discharged or held

to answer, as the facts war-

rant. It seeks to determine

whether there is probable

cause for believing that a

crime has been committed and

whether the accused is proba-

bly guilty, in order that he

may be informed of the nature

of such charge and to allow

the state to take the neces-

sary steps to bring him to

trial. Such hearing also

serves to perpeturate evi-

dence and to keep the neces-

sary witnesses within the

control of the state. It

also safeguards the accused

against groundless and vin-

dictive prosecutions, and

avoids for both the accused

.

and the state the expense and

.inconvenience of a public

trial. "Criminal Procedure in

Alabama" M. Clinton McGee,

(University of Alabama Press

1954), p. 41.

Although Alabama's statute dif-

fers in varying degrees, from prelimin-

ary hearing statutes in other states, it

can be stated without equivocation, that

Alabama's preliminary hearing is consid-

ered a "critical stage" in the criminal

process, and because of this construc-

tion, the assistance of counsel is re-

quired during such proceeding. Coleman

v. Alabama, 399 U.S. 1, 90 S.Ct. 1999,

26 L.Ed.2d 387 (1970).

It is fundamental to American juris-

prudence that a series of procedural steps

in the criminal process, without the pro-

tection of substantive guidelines, falls

far short of providing justice as the

framers of the Constitution intended. Con-

sequently, additional constitutional safe-

guards are required to vindicate the legal

rights of every criminal defendant and

provide equal protection and due process

for all. The primary safeguard is found

in the Fourteenth Amendment which provides

that every defendant, regardless his

wealth, color or nationality, shall be

furnished with virtually the same oppor-

tunities in the criminal process, e.g.,

right to obtain legal advice, and the

right, in proper circumstances, to obtain

a free transcript of court testimony in

5 ASS

order to successfully perfect an appeal.

In the landmark decision of Griffin v.

Illinois, 351 U.S. 12, 76 S.Ct. 585, 100

L.Ed. 891, 55 ALR2d 1055 (1956), this

Honorable Court recognized the substan-

tive rights of a criminal accused and

specifically spoke to the question of

whether or not a state should provide a

free transcript of the trial court re-

cord, to an indigent defendant, for the

purpose of prosecuting an appeal from a

lower court conviction. In that opinion

the Supreme Court said:

The constitutional guaranties

of due process and equal pro-

tection both call for proce-

dures in criminal trials

which allow no invidious dis-

criminations between persons

and different groups of per-

sons; all people charged wich

crime must, so far as the law

is concerned, stand on an

equality before the bar of

justice in every American

court.

In Britt v. North Carolina, 404 U.S. 226,

92 S.Ct. 431, 30 L.Ed.2d 400 (1971), the

Supreme Court referred to Griffin v.

Illinois and said:

Griffin v. Illinois and its

progeny establish the princi-

ple that the State must, as a

matter of equal protection,

PR eS SELENE EAS BRET LAE HEE AEE EIEN OLE IE ot CIEE EAT

o, ee oe

provide indigent prisoners

with the basic tools of an

adequate defense or appeal,

when those tools are avail-

able for a price to other

prisoners.

Narrowing the scope of our investi-

gation to the specific issue of whether

or not the State can be compelled, in

proper circumstances, to provide a free

transcript of testimony given at the pre-

liminary hearing, Britt v. North Carolina,

supra., sets forth the appropriate test

to determine if the indigent defendant

merits receipt of such a transcript;

In prior cases involving an

indigent defendant's claim

of right to a free trans-

cript, this Court has iden-

tified two factors that are

relevant to the determina-

tion of need: (1) the value

of the transcript to the

defendant in connection with

the appeal or trial for

which it is sought, and (2)

the availability of alter-

native devices that would

fulfill the same functions

as a transcript. (404 U.S.)

In other words, there exist two and possi-

bly three factors which determine the

necessity of obtaining a free transcript

of the preliminary hearing in advance of

trial, and such determination must be

hen | aaa

made according to the circumstances of

each particular case. First, there must

be a timely request, second, the value

of the record to the defendant in pre-

paration for trial must be considered,

and third, the inability of the accused

to pay for a court reporter and lack of

satisfactory substitute are evaluated.

However, once it is established that the

defendant has successfully satisfied each

of the above requirements, if a free

transcript is not provided, there would

“unquestionably be a violation of both the

‘spirit and the letter of the due process

and equal protections clauses of the

Fourteenth Amendment, therefore requiring

redress. A close examination of the re-

cord will reveal that the Petitioner,

Randy Cordle, has unquestionably satis-

fied the requirements set forth in Britt

vs North Carolina, supra. By virtue of

his timely and repeated requests for a

free copy of the preliminary hearing

record, due to the crucial testimony

offeredc during the preliminary hearing,

and because of Randy's inability to

obtain his own court reporter, coupled

with a complete absense of any reason-

able\substitute for a copy of the trans-

cript, the Petition clearly meets the

test mentioned in Britt.

Also speaking directly to this

point, mentioned immediately above,

Griffin v. Illinois, supra., stated:

e Sers

In criminal trials a state can no

more discriminate on account of

poverty than on account of reli-

gion, race, or color; the ability

to pay costs in advance bears no

rational relationship to a defen-

dant's guilt or innocence and can-

not be used as an excuse to de-

prive a defendant of a fair trial.

The question involving a free preliminary

hearing transcript has also been discuss-

ed in a number of recent state and feder-

al cases, see e.g., Kansas v. Greene, 214

Kan. 78, 519 P.2d 651, 654 (1974); Hunter

v. District Ct. In And For the Twentieth

Judicial District, Colo. eS

P.2d 941, 942 (1974); State v. Sanchez,

86 N.M. 68, 519 P.2d 304, 305 (1974) ;

State v. Campell, __—ilowa __, 215

N.W.2d 227, 229 (1974); State v. Lewis,

—_. Lowa es, - 215 N.W.2d 293, 294 (1974);

People v. Carroll, 12 111.App.3d 869, 299

N.E.2d 134, 140 (1973); Commonwealth v.

Minifield, 225 Pa.Super. 149, 310 A.2d

366, 369 (1973); McHale v. State,

—_._ Miss. ____ 284 So.2d 42, 44 (1973);

Jefferies v. State, _ Florida ay Bee

So.2d 436, 438 (1973); Lau v. Nichols,

483 F.2d 791, 804 (9th Cir. 1973);

United States v. Bamberger, 482 F.2d 166,

168 (9th Cir. 1973); United States v.

McMann, 408 F.2d 896, 897 (2nd Cir. 1969).

mine. eae

‘in the present case, the key witness

for the State was fourteen-year-old Glenda

Bolen. Her capacity to know and under-

stand the nature of the oath and to real-

ize the importance of telling the truth,

unquestionably weigh heavily against her

competency to testify as a witness. The

importance of this fact is significantly

increased after realizing that the State,

without Glenda's testimony, at both the

preliminary hearing and trial, could not

have bound Randy over for trial and

induced his subsequent conviction. There-

fore, because of the serious nature of

the offenses alleged and the testimony

given at the respective proceedings, the

critical importance of having a copy of

the testimony given at each proceeding is

very apparent.

In Conley v. Denver, 321 F.Supp.

723 (W.D. Pa. 1970), the U. S. District

Court recognized the right of a defen-

dant to have a transcript of the prelim-

inary hearing, saying:

The second enumerated benefit

of counsel's presence, to

fashion a vital impeachment

tool or to preserve the favor-

able testimony of one who does

not appear at the trial, is a

benefit which, as a practical

matter, cannot be realized

without there being available

. to counsel at trial a verbatim

transcript of the preliminary

heari.ng.

ies” ae

We also call the Court's attention

to the opinion of the Supreme Court in

Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct.

194, 19 L.Ed.2d 41 (1967). In that case,

the Court held that where a witness gives

crucial testimony, on behalf of the pro-

secution at the preliminary hearing, the

defendant was entitled to a transcript of

that hearing. The Court said: "Differ-

ences in access to the instruments needed

to vindicate legal rights, when based

upon the financial situation of the defen-

dant, are repugnant to the Constitution."

This Honorable Court has also made

a similar statement in Britt v. North

Carolina, supra., "While the outer limits

of that principle (the role of the "equal

protection clause" in aiding the defen-

dant to perfect a defense or an appeal)

are not clear, there can be no doubt that

the State must provide an indigent defen-

dant with a transcript of prior proceed-

ings when that transcript is needed for

an effective defense or appeal."

A number of other decisions have

also recognized the constitutional rights

of a defendant, especially when such

rights are seemingly predicated upon the

size of the defendant’ pocketbook. See,

e.g., Mayer v. City of Chicago, 404 U.S.

189, 92 S.Ct. 410, 30 L.Ed.2d 372 (1971);

Williams v. Oklahoma City, 395 U.S. 458,

89 S.Ct. 1818, 23 L.Ed.2d 440 (1969);

Long v. District Court of Iowa, 385 U.S.

192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966);

in fae

Draper v. Washington, 372 U.S. 487, 83

Soe Tit, OLE 2d 899 (1963); Gardner.

v. California, 393 U.S. 367, 89 S.Ct.

580, 21 L.Ed.2d 601 (1961); Eskridge v.

Washington Prison Board, 357 U.S. 214,

78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958).

For the purpose of emphasising the

importance of the preliminary hearing and .

the related question concerning the provi-

sion of a free transcript to criminal de-

fendants, the preliminary hearing can be

favorably compared with appellate review

on the state level. The comparison be-

ing successfully accomplished because the

individual states are not required to pro-

vide either a preliminary hearing or

appellate review.

In Griffin v. Illinois, supra., we

read the following:

A state is not required by

the Federal Constitution to

provide appellate courts or a

right to appellate review at

all; but where a state does

grant appellate review in a

criminal case, it cannot dis-_

criminate against some con-

victed defendants on account

of their poverty, and the due

process and equal protection

clauses, at all stages of the

proceedings, protect a defen-

dant from invidious discrim-

ination.

a

_ Also in Rinaldi v. Yeager, 384 U.S.

. 305, 86 S.Ct. 1497, 16 L.Ed.2d 577,

(1962) , the Court mentions that states

have never been constitutionally com-

pelled to provide avenues of review for

criminal convictions, however ,

'.e-it is now fundamental that,

once established, these avenues

must be kept free of unreasoned

distinctions that can only im-

pede open and equal access to

the courts.

Finally, in Lau v. Nichols, 483

F.2d 791 (9th Cir. 1973) we find the

following:

+a person's poverty may not

be the basis for denying him

the same facilities and aids

in combatting criminal charges

against him as are enjoyed by

those who can pay for such

facilities and aids with their

own funds. Affirmative state

action is required to redress

the inequality, and the state's

duty to redress is imposed

without reference to whether

or not it can be said that

the state in some way caused

the inequality in the first

place. The state's duty to

take affirmative action does

not arise because it can be

said that the state is primar-

me. eae

ily responsible for making a

poor man poor. Rather, the

duty arises because the state

must put justice within reach

of every man if the state

chooses to provide a system

of criminal justice at all.

Also see Blackledge v. Perry, U.S. , f

94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and |

Ross v. Moffitt, U.S. _, 94 S.Ct. j

2437, 41 L.Ed. 24 Bal (1974).

All of these cases stand for one

simple proposition, if a particular state

is inclined to provide appellate review,

it must do so in a manner which does not

discriminate against certain defendants

because of their financial stature. This

same principle should likewise hold true

for State supervised preliminary hearings.

If the hearing is provided at all, it

should be provided in a manner which does

not discriminate and work a hardship

against those who cannot financially

afford a transcript of their preliminary

hearing. All defendants, regardless of

financial status should be given the

opportunity to make use of the discovery

techniques available at and by virtue of

the preliminary hearing.

ae

In William v. Jasper, 287 Ala. 237,

250 So.2d 701 (1971), the Supreme Court

of Alabama refused to follow Roberts v.

LaVallee, supra., distinguishing Williams

and Roberts on the grounds that the State

of New York has a statute which allows

for free transcripts to be provided for

indigents. In passing however, the

Supreme Court of Alabama also mentioned

that the State of Alabama formerly had~

a statute similar to New York's, Tit. 15

Sec. 135, Ala. Code (recomp. 1958) 1940,

but after the decision of Roberts v.

LaVallee, the Alabama Legislature saw

fit, for reason unknown, to repeal the

statute, Act. No. 1106, General Acts of

Alabama, 1969, approved September 12,

1969.

At first blush, a single statute

being repealed presents no great con-

cern and is soon passed off as being

merely harmless. But when the existence

or nonexistence of a particular statute

has a direct bearing upon the guarded

rights of a human being, the repealing

of a statute cannot be passed off as

merely harmless. Therefore, upon closer

examination we find a statute that has

been recorded since, at least, the turn

of the century and which was suddenly

repealed to avoid and/or circumven: the

decision of the United States Supreme

Court in Roberts v. LaVallee, supra,

But the true significance of this action,

by the Alabama Legislature, is not com-

pletely realized until one analyzes the

results of such action. Before the sta-

- 22 -

tute was repealed, rich and poor alike were

afforded, theoretically, the same opport-

unity due to the fact that testimony from

the preliminary hearing was recorded in

each case. Without this statute, however,

the opportunity for discrimination is

prevalent. The wealthy have the alternative

to preserve the testimony from the pre-

liminary hearing, and the indigents,

obviously, have no similar opportunity.

Needless to say, the United States

Constitution cannot tolerate such discrim-

ination, especially when it is initiated

under the cloak of legislation.

In conclusion, there exists no

stronger argument for the proposition that

indigents should be provided with 4 free

transcript of their preliminary hearing

than those which exist in this present

case. The Defendant requested a trans-

cript prior to the preliminary hearing

due to the technical nature of the case

and the request was summarily refused.

The Defendant was subsequently convicted,

and it can be safely stated, that the

conviction is more than substantially

attributable to the lack of the requested

transcript. Therefore, the Circuit Court

of Montgomery committed error in denying

the Defendants Motion to Quash, the request

for a new preliminary hearing and the .

request for a free copy of the hearing.

For the reasons hereinbefore cited,

the Criminal Court of Appeals and the

Supreme Court of Alabama also committed

error in affirming the decision of the

i a

Circuit Court, therefore the decision of

the Courts, mentioned hereinbefore are

due to be reversed.

Respectfully submitted

>

oat). f

Frank W. Riggs

Counsel for Petitioner

P. O. Box 1047

Montgomery, Alabama

36102

CERTIFICATE OF SERVICE

I hereby certify that I have served

three copies of the foregoing Petition for

Writ of Certiorari upon Honorable William

J. Baxley, Attorney General for the State

of Alabama, Administrative Building,

Montgomery, Alabama, by mailing copies of

same to him, postage paid, this 3rd day

of October, 1974.

mttaley

Frank W. Riggs

ET —

APPENDIX

THE STATE OF ALABAMA - JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1973-74

3 Div. 238

David R. Cordle

v.

State

Appeal from Montgomery Circuit Court

HARRIS, JUDGE

Appellant was convicted of rape and

the jury fixed his punishment at ninety-

nine (99) years and one (1) day in the

penitentiary. The judgment and sentence

were in accordance with the verdict of

the jury. The judgment entry recites

that appellant pleaded not guilty, but

the record shows that at arraignment in

open court his court-appointed counsel

interposed two pleas: (1) not guilty and

(2) not guilty by reason of insanity. The i

trial was had on both pleas and the court

charged the jury on the law of insanity.

After conviction and sentence he gave

written notice of appeal. He made known

to the court that he was an indigent and

ae

- 25 -

a free transcript was furnished to him.

He retained new counsel to represent him

on appeal.

Appellant was first arraigned on

February 22, 1972, and on February 24, he

filed two motions: (1) motion to quash

the indictment on the ground that he

could not adequately prepare his defense

since the preliminary hearing given him

on January 12, 1972, had not been taken

by a court reporter though he had re-

quested the committing magistrate to ob-

tain the services of a court reporter,

and in connection with this motion to

quash, he requested a second preliminary

hearing with a court reporter, and (2) a

motion to send him to a state hospital to

determine his sanity at the time of the

commission of the offense and his compe-

tency to stand trial. Both motions were

overruled and denied by the court on

February 25, 1972. Nevertheless, on

March 10, 1972, the court ordered a psy-

chiatric examination by the staff at

Bryce Hospital to determine Appellant's

sanity or insanity. On May 1, 1972, the

following letter was sent to the Circuit

Judge of Montgomery County:

"STATE OF ALABAMA

DEPARTMENT OF MENTAL HEALTH

BRYCE HOSPITAL

Tuscaloosa, Alabama 35401

SEAL

STONEWALL B. STICKNEY, M.D.

COMMISSIONER OF MENTAL HEALTH

A. | eae

"SEAL

GEORGE C. WALLACE

GOVERNOR

"May 1, 1972

"Honorable Richard Emmet

Judge of Circuit Court

Montgomery County, Alabama ‘

Montgomery, Alabama

"Cordle, David R.

Our file 03 28 37

"Dear Judge Emmet:

"David R. Cordle was admitted in

Bryce Hospital on March 13, 1972,

on your order dated March 10,

1972, and is presently a patient

in Bryce Hospital.

"After a period of examination, ob-

servation, and study, it is the

opinion of the hospital staff that

the said David R. Cordle is pre-

sently sane and competent. It is

our further opinion that he was

sane and competent at the time of

admission in Bryce.

"We are ready to release him and

will hold him awaiting the arrival

of the sheriff, or any duly

appointed officer, to take him into

custody.

"Sincerely,

QQ,

ited» alee

"s/s Donald Smith

Donald Smith, M.D.

Assistant Superintendant

"pk

"ce: Sheriff Mac Sim Butler

Montgomery County, Alabama

Montgomery, Alabama"

Following receipt of the above

letter, the Court ordered the Sheriff of

Montgomery County to assume custody of

Appellant and to transfer him from Bryce

Hospital to the Montgomery County jail to

stand trial on the charges pending against

him.

A subpoena duces tecum was issued

out of the Circuit Court of Montgomery

County directed to the records clerk of

Bryce Hospital for the production of all

medical records pertaining to Appellant's

confinement in Bryce Hospital to be used

as evidence in his trial. Xerox copies

of these medical records properly certi-

fied by the assistant superintendent

were sent to the Court in response to

this subpoena and they were introduced in

evidence by Appellant over the objections

of the State.

There was no attempt to take the

depositions of the Bryce staff appointed

to examine Appellant as provided by

Title 45, Section 226, Code of Alabama

' 1940; Sheppard v. State, 49 Ala.App. 398

272 So.2d 605.

The Court could have legally refus-

ed to admit in evidence the reports of

the doctors who made up the Lunacy

Commission fot the reason these reports

were not made under the sanction of an

oath and were not intended for general

public information. Benton v. State,

245 Ala. 625, 18 So.2d 428; Benton v.

State, 31 Ala.App. 338, 18 So.2d 423.

The facts._in this case are sordid

in the extreme but it is necessary that

we dwell on them to some extent.

Around mid-night on November 24,

1971, Appellant entered the backdoor of

an apartment in East Montgomery. The

door was closed but was unlocked. He

went into the kitchen and stood for a

few minutes listening for signs of life

in the apartment. From the kitchen he

could see into the.livingroom. He saw a

rocking chair move in the livingroom but

could not see the occupant of the chair.

He approached the chair from its back and

saw a young girl reading a magazine. He

reached out and put his hand over her

mouth to keep her from screaming. He

took her glasses off and put them on a

table and while his hand was still over

her mouth, he heard a dog bark somewhere

in the apartment. He told the girl he

had a knife but if she did what he told

her to do he would not hurt her. He told

her to walk out the backdoor and they

walked out side by side with his hand

\

SaaS snnassssesanaeannemarnsererenmayesnanoasenessesemesnnsanen-orese

eis, A

still over her mouth. He carried her to

his car parked on the street near the

apartment and put her in the frontseat

and told her to keep her head down on

the seat. He drove out on the Wares

Ferry Road and turned on a dirt road. He

told her to take her clothes off and she

asked him to please not do anything to

her. He slapped her and told her if she

didn't take her clothes off, he was go-

ing to rip them off. She then proceeded

to undress and after she had removed all

of her clothes he told her to get in the

backseat. She got on the backseat and he

got back there with her and started play-

ing with her breasts. She told him she

was fourteen years of age and that she

was having her period and to please not

do anything to her. He ignored her pleas

and got on top of her. She felt his pri-

vates make contact with her privates. She

was a virgin and the first two attempts

he made to gain entry were unsuccessful,

but he persisted in his efforts. He

finally ruptured her hymen and completed

the sexual act. After it was over, he

handed her clothes to her and told her to

dress and he would take her back home. On

the return trip he told her to keep her

head down on the frontseat. The car

stopped for a traffic light and the vic-

tim thought they had gotten back to the

place where he had forced her into the

car and she raised up and got a good look

at her assailant for the first time. He

drove her a short distance beyond the

frontdoor of the apartment where he had

aes. ae

abducted her and he let her out and

drove away. She ran into the apart-

ment.

The victim of this rape lived

with her mother and brother in the

same apartment complex from which she

was abducted on the night of the rape

but she was baby-sitting for an Air

Force captain and his wife in the

apartment where Appellant found her.

She put a four-year-old child and a

small baby to bed about nine o'clock

that night and put the dog in the bed-

room with the children. This was the

dog that barked while Appellant had

his hand over the girl's mouth which

frightened him and which moved him to

take her out on a country road. Between

twelve thirty and one p.m., the captain

and his wife returned to their apart-

ment and found the baby-sitter's pocket-

book and glasses, but the girl was miss-

ing. The captain went to the girl's

apartment to report her disappearance to

her mother. While the captain was talk-

ing with the girl's mother, the captain's

wife called the girl's mother and told

her the girl had returned, but she was

in a state of emotional shock, dis-

traught and was highly hysterical and

needed her badly. The police were alert-

ed and responded immediately. The mother

dressed and went to her daughter. The

girl was carried to the emergency room of

a local hospital. The doctor on duty was

informed that the girl had just been raped

and he conducted a vaginal examination

“Seoge : wae

including a pap smear. He found fresh

male fecundating fluid or semen.

A few weeks later the victim was

shown a number of photographs of sus-

pects at the Montgomery Police

Department and she identified Appellant

as the man who raped her on the night of

November 24, or the early morning hours

of November 25, 1971.

On the afternoon of December 27,

1971, three Montgomery police officers

went to Wetumpka and found Appellant at

work at a cotton gin. They identified

themselves and told Appellant they wanted

to talk to him about an incident that

occurred in Montgomery on December 24,

1971. They asked him if he wanted to

talk with them there or in Montgomery and

he told them he would rather talk in

Montgomery but he wanted to go by his

home in Wetumpka first. Appellant got in

the police car with two of the officers

and they carried him by his home and

then brought him to the detective's

office at Headquarters. The third offi-

cer drove Appellant's car from the cotton

gin.

They arrived at Police Headquarters

around 4:00 p.m. on December 27, 1971, and

the officers immediately gave Appellant

the rights and warnings extolled in

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694,

Beet. ee

After the Miranda warnings were

given to Appellant, he told the offi-

cers that he fully understood his rights

and that he was willing to answer ques-

tions. He thereupon signed a waiver of

rights form as shown below:

“CITY OF MONTGOMERY, ALABAMA

DEPARTMENT OF POLICE

"David Randall Cordle

NAME

"Police H. Q. Det. Office

PLACE

"Dec. 27, 1971

DATE

"Before asking you any questions,

I must explain to you that you

can remain silent, that any-

thing you say can be used

against you in court, that you

can talk to a lawyer first and

that you have the right to the

advice and presence of a lawyer

even though you cannot afford to

hire one. If you cannot afford

to hire a lawyer and want to

have one present during the in-

terrogation, the Court will

a. Sane

appoint one before we question

you. If you want to answer

questions now, you can do so,

but you can stop answering at

any time.

"s/s H. W. Gandy

OFFICER

"I fully understand the foregoing

statement and do willingly agree

to answer questions, I under-

stand and know what I am doing.

No promise or threats have been

made to me by anyone and no pres-

sure of any kind has been made

against me by anyone.

"s/s David Randall Cordle

He then made and signed the following

statement:

"December 27, 1971 8:20 p.m.

"Statement of David Randall Cordle

W/M age 24, 406 Bridge St. , Wetumpka,

Alabama, as given to Det. H. W.

Gandy of the Montgomery Police Dept.

in regards to entering the residence

at #20 Turner Place on about 11-25-71

at about midnight, taking a girl

from this apartment against her will

and taking her in an automobile and

carrying her out the Wares Ferry

Road near Montgomery East and raping

her in the backseat of the car.

Neogek. |’ Wie

"My rights have been explained to

me in this case and I understand

that I do not have to give this

statement unless I wish to do so.

"On this date, I had gotten off

work at the Perkins Warehouse

and Gin in Wetumpka, Alabama. I

think it was around 8 o'clock

_that night that I got off, we

had worked late that day. I did

not go home, I come to Montgomery.

I had stopped at the, little

Lounge on Coliseum Blvd. and had

drank some beer. I then went to

a movie at the Charles downtown.

It was pretty late when I got out

of the movie. I drove back out

the Atlanta Highway, and when I

got to Turner Place, I drove

through. I thought about the

giri at #20 that I had tried back

in the summer and I decided to

check on her. I looked for the

family car and it was not there,

so I parked my car near the tele-

phone booth near the service sta-

tion, and then I walked in behind

the apartments. The light was on

in #20, but I could not see any-

one inside. I checked the back

door and it was not locked. I

opened it and walked inside. Just

as I got in the kitchen, I saw a

rocking chair in the living room

move and I know someone was in the

chair. I stood still for a little

Lelia eee neccceaaiaeell

a

while and then I slipped on over

to the chair. I reached around

and put my hand over the girl's

mouth and at the same time told

her not to scream or I would

kill her or something to that

effect. She had on glasses and

I took them and put them on a

table and at that time a dog in

the apartment started to barking

and I got scared and I told her

to walk out the backdoor. I

still had my hand over her mouth

during this time. I hada little

box cutter and I told her that I

would cut her throat if she made

a sound, but if she did what I

said, I would not hurt her. We

went to my car which was by the

phone booth and I told her to get

in and lay down or hold her head

down. We left there and I drove

out the Wares Ferry Road out

past where they are building

houses in Montgomery East. Just

as I passed Montgomery East,

there was a little dirt road to

the left, I turned on it aed

went down there and parked. I

told this girl to pull off her

clothes and get in the back

seat. She tried to get me not

to do anything to her but I had

built up a head of steam and I

could not help myself. She got

in the back seat and I then got

back there with her. I had sex

relations with her and then I

aaa ae

told her to put her clothes on and

I would take her home. She then

put her clothes on and I drove her

back to Turner Place and let her

out of the car. I then went home".

NQ, What type of car did you have at

this time?

"A. A 1969 Lemans.

"Q. Does it have bucket seats?

"A. Yes.

"Q. What color is the seats?

"A, They are dark green.

"Q.. What did you have on that night?

a I just don't remember.

"Witness s/s H. W. Gandy

H. W. Gandy 121

"Signed s/s David Randall Cordle

David Randall Cordle"

There had been a series of rapes

and burglaries in Montgomery during the

Summer and Fall of 1971. The police offi-~

cers questioned Appellant about each of

these crimes; however before interrogating

him about each case, they gave him the

Miranda warnings and he executed a waiver

of rights form for each separate case as

—— a

that case was mentioned. This proce-

dure was strictly followed in each

separate case until Appellant had

been questioned in seven or eight

cases. Finally at 8:20 p.m. the

officers mentioned the present case

and the same procedure was carried out

resulting in Appellant's voluntary con-

fession.

Appellant predicates error on the

part of the trial court in admitting in-

to evidence his oral and signed confes-

sion claiming that he was subjected to

long and protracted "custodial interro-

gation" without the Miranda warnings

over a period in excess of four hours.

This claim is not supported by the re-

cord in this case. As above ‘pointed out,

Appellant was a prime suspect in seven

or eight cases of rape and burglaries.

As the officers brought up each case

they gave Appellant the Miranda warnings

before interrogating him on each sep-

arate case. It was only after he indi-

cated his willingness to talk and after

expressly waiving his right to counsel

did the officers ask him any questions.

The grand jury indicted Appellant

on two charges of rape, three cases of

burglary in the second degree, and two

cases of assault with intent to ravish.

No doubt these seven cases, and proba-

bly other, were discussed with Appellant

during the four hour period leading up

to his confession in the present case.

ie ee

During this period of interrogation he

was given food and a drink of his choice.

Appellant complains that since the State

did not offer in evidence the waiver of

rights form on any other case, this tends

to prove that he was interrogated for

four hours before a confession was ex-

tracted from him in the instant case and,

therefore, the confession was involuntary.

Had the State offered such proof this

would have been evidence showing separate

and distinct crimes in one prosecution

and would have constituted reversible

error unless such criminal acts were rele-

vant to the crime charged as bearing on

scienter, intent, motive, res gestae, or

the identity of the accused. Lambertv.

State, 48 Ala.App. 600, 266 So.2d 812;

"The Law of Evidence in Alabama" by Judge

J. Russell McElroy, Vol. 1, 2d. Ed. pp.

166-169; 6 Ala. Digest Criminal Law Key

No. 365.

The procedure followed by the

police officers in this case fully com-

plied with Miranda v. Arizona, supra.

Appellant insist the trial court

committed reversible error in not afford-

ing him a full transcription of the pro-

ceedings at his preliminary hearing.

Before the preliminary hearing he moved

the magistrate for the appointment of a

court reporter to record the testimony.

This motion was denied. He tenewed this

motion in the Circuit Court seeking a

second preliminary hearing. This motion,

too, was denied.

fon a Oe

A preliminary hearing is a criti-

cal stage in the criminal process in

Alabama and at such a hearing the appoint-

ment of counsel is required for indigent

defendants. Coleman v. Alabama, 399 U.S.

1, 90 S.Ct. 1999, 26 L.Ed.2d 387.

For well over a hundred years the

preliminary hearing procedure in this

state required the magistrate, or someone

under his direction to reduce to writing

the testimony of the witnesses both for

the defendant and the State and to have

the witnesses sign their names to their

respective statements. Title 15, Section

135, Code of Alabama 1940. The Legisla-

ture saw fit to repeal this section by

Act No. 1106, General Acts of Alabama

1969, approved September 12; 1969. There

is no other statute requiring the record-

ing and transcription of the testimony

had and taken at a preliminary hearing in

Alabama. Williams v. Jasper, 287 Ala.

237, 250 So.2d 701.

No error was committed by the

trial court in overruling and denying

Appellant's request for a second prelim-

inary hearing and the appointment of a

court reporter to record and transcribe

the proceedings.

Appellant did not testify in his be-

half but was contented to offer character

witnesses and the testimony of a psychia-

trist. The psychiatrist saw and examined

Appellant in the Montgomery County jail

ee Oe

on two occasions, viz., March 7 and May

9, 1972. The psychiatrist was with

Appellant about an hour on each occa-

sion. His diagnosis was "schizophrenia

with paranoid tendencies."

The doctor further testified that

in his opinion Appellant did not have

the mental ability to distinguish be-

tween right and wrong on the night he

committed the rape and that he did not

have the ability to distinguish between

right and wrong on the two occasions he

examined him in the county jail. The

doctor said Appellant did not have a

criminal intent at the time he took the

girl on November 24 or 25, 1971.

The doctor further testified that

the origin of Appellant's onset of mental

illness dates from an episode in his life

when he was fourteen years of age. The

doctor described the incident as follows:

"That goes away back to his

childhood, and 1'1l try to

find evidence here and read

it to you as I received it

from the patient...I have a

lot here, but it all amounted

to the fact that when he was

about 14 years old, he was

lying in his bedroom and he

looked across the way to

another building, and he saw

a woman undress before the

window and dance and carry on.

He was sort of surprised by

Be

a.

this, and so he went out and

got a closer look. He went

close to the window, which

was open, and the woman saw

him and told him to come in

the room, and she began to un-

dress him and made him lie on

the bed next to her, and made

him finally submit to relations;

and after he had done that, she

left, presumably to go to the

toilet, and he hurried out of

there as fast as he could. From

that time on, he had a compell-

ing desire to see women undress,

and when they undressed, it

aroused such a sexual fervor,

that he masturbated at the

same time. This impulse would

only seize him at certain times.

Other times, he would be per-

fectly normal. But when the

impulse came, he had no control

over it whatsoever, and he sub-

mitted to his own impulses.

That, I think, was the origin

of the whole business."

The defense of insanity has been

ruled on by the Appellate Courts of this

State in many cases and on numerous

occasions. From Wingard v. State, 247

Ala. 488, 25 So.2d 170, we take the

following:

"The defense of insanity must be

clearly proven to the reasonable

satisfaction of the jury and the

- 42

burden is on the defendant to

do so. Code 1940, Title 15,

Sec. 422; Boyle v. State,~.229

Ala. 212, 154 So. 575; Lee v.

State, 246 Ala. 343, 20 So.2d

471; Reedy v. State, 246 Ala.

363, 20 So.2d 528.

"There is no sanction in our law

of emotional insanity as an ex-

cuse for crime. Coffey v.

State, 244 Ala. 514, 14 So.2d

122; Reedy v. State, supra.

"We repeat the well-known rule

that to sustain the defense of

insanity the evidence must es-

tablish that at the time of the

commission of the crime the

defendant was afflicted with a

diseased mind to the extent

that (1) he did not know right

from wrong as applied to the

particular act in question, or

(2) if he did have such knowledge,

he, nevertheless, by reason of

duress of such mental disease

had so far lost the power to

select the right and to avoid

doing the act in question as

that his free agency was at the

time destroyed, and (3) that, at

the same time, the crime was so

connected with such mental dis-

ease, in the relation of cause <

and effect, as to have been

the product of it solely. Parsons

v. State, 81 Ala. 577, at pages

ar em oe

596, 597, 2 So. 854, to Am.Rep.

ht ad

The oral charge of the court thor-

oughly covered the lew of insanity in crim-

inal prosecutions and there was no error

in refusing the written charge on this sub-

ject. Title 7, Section 273, Code of

Alabama 1940,

There was no error in the rulings

of the trial judge with reference to the

unsworn medical report from the doctors

at Bryce Hospital. In 314A C.J.S., page

568, Section 200, Evidence, this rule is

stated to be that "a witness cannot

testify to facts of which his knowledge

is derived from the unsworn statements of

others ,***,"'

We have carefully searched the re-

cord for errors injuriously affecting

the substantial rights of Appellant and

have found none. The case is due to be

affirmed and it is so ordered,

AFFIRMED,

All the Judges concur.

eee Gar

April 9, 1974

STATE OF ALABAMA - JUDICIAL DEPARTMENT

COURT OF CRIMINAL APPEALS

3rd Div. 238

David R. Cordle

Vv.

State of Alabama

Appeal from Montgomery Circuit Court

Come the parties by attorneys, and

the record and matters therein assigned

for errors, being agrued and submitted

and duly examined and understood by the

Court; it is considered that in the re-

cord and proceedings of the Circuit Court

there is no error. It is therefore con-

sidered that the judgment of the Circuit

Court be in all things affirmed. It is

also considered that the Appellant pay

the costs of appeal of this Court and of

the Circuit Court.

ae ty

May 21, 1974

STATE OF ALABAMA - JUDICIAL DEPARTMENT

COURT OF CRIMINAL APPEALS

3rd Div. 238

David R. Cordle

Ve

State of Alabama

Appeal from Montgomery Circuit Court

IT IS ORDERED that the application

for rehearing be and the same is hereby

overruled.

i ae.

STATE OF ALABAMA

MONTGOMERY COUNTY

I, Mollie Jordan, Clerk of the Court

of Criminal Appeals, do hereby certify that

the foregoing pages numbered 1 through 13

contain a full, true and correct copy of

the opinion, judgment, and order overrul-

ing the application for rehearing in the

appeal of David R. Cordle v. State of

Alabama, Montgomery Circuit Court No.

7021, Court of Criminal Appeals 3rd Div.

238, as the same appear and remain of

record and on file in this office.

Witness my hand, Mollie Jordan,

Clerk of the Court of Criminal

Appeals of Alabama, this the

25th day of September, 1974.

/s/ Mollie Jordan

Clerk of the Court of Criminal

Appeals of Alabama

a. Hee

THURSDAY, JUNE 20, 1974

THE STATE OF ALABAMA - JUDICIAL DEPARTMENT

IN THE SUPREME COURT OF ALABAMA

OCTOBER TERM 1973-74

$C. 855

Ex Parte: David Randle Cordle

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS

(Re: David Randle Cordle v. State)

Comes the petitioner and files in

this Court his Petition for Writ of

Certiorari to the Court of Criminal

Appeals and the same being submitted and

duly examined and understood by the Court,

it is CONSIDERED AND ORDERED that the

petition be, and the same is hereby,

denied and the petition be, and the same

is hereby, dismissed.

(No Costs Taxed)

THURSDAY, AUGUST 1, 1974

SC 855

Ex Parte: David Randle Cordle

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF CRIMINAL APPEALS

(Re: David Randle Cordle vs. State of

Alabama)

IT IS ORDERED that the application

for rehearing filed in this cause on

July 8, 1974, be, and the same is hereby,

overruled.

I, J. O. Sentell, Clerk

of the Supreme Court of

Alabama, do hereby certi-

fy that the foregoing is

a full, true and correct

copy of the instrument(s)

herewith set out as same

appears cof record in

said Court.

Witness my hand this 25th

day of Sept., 1974.

/s/ J. O. Sentell

Clerk, Supreme Court of

Alabama