Brief for the Respondent in Opposition — Cordle v. Alabama

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NOV 5 1974

SUPREME COURT, 3

IN THE

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: Supreme Court of the United States

OCTOBER TERM, 1974

NO. 74-37]

DAVID RANDLE CORDLE,

Petitioner

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STATE OF ALABAMA,

Respondent

THE COURT OF CRIMINAL APPEALS OF ALABAMA

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

BRIEF FOR RESPONDENT

WILLIAM J. BAXLEY

Attorney General

State of Alabama

WALTER S. TURNER

Chief Assistant Attorney General

State of Alabama

SAM L. WEBB, JR.

Legal Research Aide

State of Alabama

250 Administrative Building

Montgomery, Alabama 36104

ATTORNEYS FOR RESPONDENT

INDEX

CONSTITUTIONAL PROVISIONS INVOLVED .. 1

STATEMENT OF THE CASE 2

REASONS FOR DENYING THE WRIT ... N 3

CERTIFICATE OF SERVICE — 6

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TABLE OF CASES

Page

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

92 S. Ct. 431, 30 L.Ed. 2nd. 400, (1971) 4 4

Coleman v. Alabama, 389 U. S. 1 (1970) 3, 5

Griffin v. Illinois, 351 U. S. 12, 76

S.Ct. 585, 100 L.Ed. 811 4

Roberts v. LaVallee, 289 U. S. 40

88 S.Ct. 1940, 19 L.Ed 2d 41 (1987) 3, 4

Williams v. Jasper, 287 Ala. 237

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Supreme Court of the United States

OCTOBER TERM, 1974

NO.

DAVID RANDLE CORDLE,

Petitioner

1

STATE OF ALABAMA.

Respondent

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI TO

THE COURT OF CRIMINAL APPEALS OF ALABAMA

BRIEF FOR RESPONDENT

QUESTION PRESENTED FOR REVIEW

Do the Due Process and Equal Protection Clauses of the

14th Amendment of the United States Constitution require

that an indigent defendant be provided a free transcript of

a preliminary hearing in a State where transcripts of pre-

liminary hearings are not required and neither the State nor

the defendant is entitled to one.

CONSTITUTIONAL PROVISIONS INVOLVED

The Due Process and Equal Protection Clauses of the

14th Amendment.

STATEMENT OF THE CASE

The Petitioner David Randle Cordle was indicted by the

Montgomery County, Alabama Grand Jury in February, 1972

for the offense of Rape committed on the night of November

25, 1971. The Petitioner’s indictment came after extensive

questioning by police on several occasions in December, 1971.

A preliminary hearing was held on January 12, 1972 at

which time the Honorable William P. Haynie, Jr. was ap-

pointed by the Court to represent David Randle Cordle.

Defense Counsel requested that the accused be provided with

a free transcript of all pertinent testimony given at the

preliminary hearing. This request was denied. The pe-

titioner now alleges that this denial violated his rights under

the Equal Protection Clause of the Constitution.

The Petitioner was arraigned before the Circuit Court

of Montgomery County on the 15th day of March, 1972. He

was attended by his attorney at the arraignment and at that

time he pled not guilty. On the 24th day of February, 1972,

the defendant filed a Motion to Quash the indictment against

him and the Motion was denied by the Honorable Richard P.

Emmet, Circuit Judge of Montgomery County on February

25, 1972. On February 24, 1972, the defendant filed a

“Motion to Determine Sanity.” This Motion was also denied

on the fol wir g day by Judge Emmet.

On April 12, 1972, the Circuit Court appointed Hon. Sam

W. Taylor to represent the defendant in this cause and on

May 16, the defendant was again arraigned before the Cir-

cuit Court and again pled not guilty. On June 6, 1972, the

defendant was brought to trial before a jury of 12 who found

the defendant “guilty as charged and fixed his punishment

at 99 years and one day of imprisonment.” On that same

day, the Court considered and adjudged that the defendant

was guilty as charged in the indictment. On August 2, 1972,

the defendant filed Notice of Appeal with the Circuit Court

of Montgomery County and subsequently, appealed his con-

viction to the Alabama Court of Criminal Appeals. The

Court of Appeals upheld the conviction on April 9, 1974.

The petitioner applied for rehearing and the application was

overruled on May 21, 1974. The Petitioner then filed Writ

of Certiorari to the Alabama State Supreme Court and the

writ was denied August 8, 1974. The petitioner applied for

rehearing on the Writ of Certiorari and the rehearing was

denied. The petition for Writ of Certiorari to this Court

was filed on October 3, 1974.

REASONS FOR DENYING THE WRIT

In the State of Alabama there is no law requiring that

a transcript of preliminary hearings be kept and neither the

prosecution nor defense is entitled to such a transcript as a

matter of right. Williams v. Jasper, 287 Ala. 237, 250 So.2d

701. In Williams, supra, The Alabama Supreme Court dis-

cussed at length recent decisions of the United States Sup-

reme Court dealing with the rights of defendants at pre-

liminary hearings. It was the feeling of the Alabama Court

that neither Roberts v. LaVallee, 239 U. S. 40, 88 S.Ct. 1940,

19 L.Ed. 2d 41 (1967) nor Crieman v. Alabama, 389 U. S. 1

(1970) requires a transcript of preliminary hearings for

indigents. The Alabama Court felt that the holdings in

Roberts, supra, had no bearing on the issue to be resolved in

the instant case. In Roberts, a New York case, an indigent

claimed that his constitutional rights were violated in that

he was denied equal access to a transcript of his preliminary

hearing. New York had at that time a statute requiring the

State to furnish such a transcript on payment of a “fee.”

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4

The pertinent language of the holding in Roberts is:

“Our decisions for more than a decade now have made

clear that differences in access to the instruments

needed to vindicate legal rights, when based upon

the financial situation of the defendant, are repug-

nant to the Constitution, that ‘to interpose any

financial consideration between an indigent prisoner

of the State and his exercise of a State right to sue

for his liberty is to deny that prisoner the equal

protection of the laws.’ We have no doubt that the

New York statute ... as applied to deny a free

transcript to an indigent, could not meet the test of

our prior decisions.”

It is obvious that the situation in Roberts differs sub-

stantially from the situation now before the Court. The

defendant had equal access to all instruments needed to

vindicate his legal rights. The State has no more right nor

lack of right to a transcript than does the petitioner. As

petitioner has pointed out to the Court, the State Legislature

repealed the statutory requirement that transcripts of pre-

liminary hearings be made. Title 15, Section 135 et seq.,

repealed by Act 1106, September 12, 1969).

The petitioner also contends in addition to the violation

of his right to equal protection, that his rights to due process

were also denied. He cites Griffin v. Illinois, 351 U. S. 12,

76 S.Ct. 585, 100 L.Ed. 891 and Britt v. North Carolina, 404

U. S. 226, 92 S.Ct. 431, 30 L.Ed 2nd. 400, (1971). It should

be pointed out that both of these cases deal with the right of

indigents to transcripts of the trial record and do not deal

with the right to a record of a preliminary hearing. Petition-

er makes a vague allegation that the preliminary hearing

transcript is needed because the only eye witness to the crime

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testified at the hearing. The petitioner was represented by

counsel at the preliminary hearing in compliance with

Coleman v. Alabama, 399 U. S. 1, 90 S.Ct. 1999, 26 L.Ed. 2d.

387 (1970) and his counsel was aware of all the testimony

that took place at that time. The petitioner has at all times

been aware of the nature of the testimony that the eye

witness gave at the hearing in question. Certainly, the fail-

ure to transcribe such testimony was not the sort of depriva-

tion of liberty which constitutes a due process violation.

CONCLUSION

It is the contention of the State of Alabama that no

holdings of the United States Supreme Court require a State

to furnish an indigent with a free transcript where there is

no statute requiring such a transcript to be furnished to

anyone. Petitioner’s rights to due process were not violated

because he was represented by counsel at the preliminary

hearing. Therefore, we respectfully request that the Petition

for Writ of Certiorari be denied.

Respectfully submitted,

WILLIAM J. BAXLEY

Attorney General of Alabama

WALTER S. TURNER

Chief Assistant Attorney General

of Alabama

SAM L. WEBB, JR.

Legal Research Aide of Alabama

ATTORNEYS FOR RESPONDENT

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CERTIFICATE OF SERVICE.

I, Walter S. Turner, one of the attorneys for respondent,

and a member of the Bar of the Supreme Court of the United

States, hereby certify that on the 1st day of November, 1974,

I served requisite copies of the foregoing Brief in Opposition

to Petition for Writ of Certiorari on the Honorable Frank W.

Riggs, by placing said copies in the mail, postage prepaid,

and properly addressed to him as follows: Post Office Box

1047, Montgomery, Alabama 36102.

WALTER S. TURNER

Chief Assistant Attorney General

of Alabama

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