Petition for Writ of Certiorari — Woodard v. Alabama
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FILED
OFFICE 06 THE CAE
No.
In The
Supreme Court of the Anited States
October Term, 1994
SUSAN AMELIA WOODARD,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for Writ of Certiorari to the
Supreme Court of Alabama
PETITION FOR WRIT OF CERTIORARI
MAURICE S. BELL
547 South Lawrence Street
Montgomery, Alabama 36104
Phone: (205) 262-2719
Counsel of Record
for Petitioner
ORAL ARGUMENT REQUESTED
ALABAMA PRINTERS + 748 8. Decatur Street + Montgomery, Al 36104 » 263-7438
me on
ON EL TS A EE SG NR a
i
QUESTIONS PRESENTED FOR REVIEW
The decision of the Supreme Court of Alabama, hold-
ing that a death penalty statute which predicates “death
eligibility” solely on the age of the victim, with no other
contributing, or attendant factors requisite to its applica-
bility, is constitutionally valid; is erroneous and contra-
venes established judicial precedent by this Court,
regarding a defendant’s constitutional rights under the
Fifth, Eighth and Fourteenth Amendments of the
UNITED STATES CONSTITUTION.
ae a ee
. res
ii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ............ i
Ta Ge SA viii tech epuizinssliilivcnlattiesassens ii
TE Be EI ai cceicocevesssnecnintnenapenenenconsn iii
CPT RRIEe FAA I sida iatecnsccciscdecaticbiniésibsicknbnnts iv
REFERENCE TO LOWER COURT DECISIONS... Vv
TRAE TENET ssssiss id aucinesaissiniiabatintiaaadietaiiidcimsnnntiibcbualion 1
RELEVANT STATUTORY PROVISION .................. 1
STATEMENT OF THE CASE ..............cccccsssseeeseeeeees 2
STATEMENT OF THE FACTG..............c:cccsssceesreeeeees 5
I iicbiecicndissptattnsasspeieanstviiciatabiahinidicsatinyoeoieie 12
Ce I saihhisiaiccasin side sintinighiitivicensieniiesdinbiininavmcandbons 18
REQUEST FOR ORAL ARGUMENT ...................008. 19
CERTIFICATE OF SERVICE................cscccssssecseeeeeees 20
APPENDIX
A: August 3, 1993, Order from Circuit Court of
Montgomery County, Alabama .................... App. 1
B: August 12, 1993, Order from Circuit Court
of Montgomery County, Alabama ................ App. 11
C: September 14, 1993, Order of Alabama
Court of Criminal Appeals ....................0000008 App. 15
D: September 30, 1993, Order of Alabama
Court of Criminal Appeals ....................0000008 App. 33
E: February 4, 1994, Order of Alabama
ROM CI i ia ae cites scencca eas App. 34
ili
TABLE OF AUTHORITIES
Page
Cases: n
Ballew v. Georgia, 435 U.S.223 (1978) ...........cccccccesssseeeeeee 16
Beck v. State, 396 So.2d 645 (Ala. 1980) ................ 13, 14, 17
Furman v. Georgia, 408 U.S. 238, 313, 92 S.Ct. 2726,
2763, 33 L.Ed.2d 346 (1972) ..............cccccsccsssseeees 10, 13, 15
Godfrey v. Georgia, 446 U.S. 420, 427-428, 100 S.Ct.
1759, 1764, 64 L.Ed.2d 398, 406 (1980)...........0000.... 10, 12
Goodson v. State, 588 So.2d 509, 514
SU ss cs nseevedbansounene 11
Gregg v. Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909,
2932, 49 L.Ed.2d 858 (1976)............................... 10, 13, 15
Harris v. Rivera, 454 U.S.339 (1981) 0.0.0... cccccceeeccsseesseees 16
Ex parte Jackson, 614 So.2d 405 (Ala. 1993)........00000000.0. 14
Ex parte Johnson, 620 So.2d 709 (Ala. 1993). .......0000000.0. 14
Jordan v. DeGeorge, 341 U.S. 223, 71 S.Ct. 703,
I es canaunoncenas 10
Ex parte Kyser, 399 So.2d 330 (Ala. 1981)..............0.... 14, 17
Lockhart v. McCree, 476 U.S. 162 (1986) .............0.cccceeeeee 16
Morris v. Mathews, 475 U.S. 237 (1986) ...........0cccceeeeeeeeee 16
Ross Neely Express, Inc. v. Alabama Department of
Environmental Management, 437 So.2d 82
a sss ncaconntenceconts 9
Tapp v. Lucas, 658 F.2d 383 (5th Cir. 1981)........0.00....c... 16
Wainwright v. Witt, 469 U.S. 810 (1985)... eee 16
Woodson v. North Carolina, 428 U.S. 280 (1976) .............. 13
Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733 (1983)....... 7
iv
TABLE OF AUTHORITIES (Continued)
Page
Other Authorities:
§13A-5-40(a)(15), Code of Alabama,
CE cdc iiha nisin A deuileiisncdetadnssasdencteccosnsnniis passim
UNITED STATES CONSTITUTION
i cncnchbsninsdechinvcoreutcicsoniouss 12, 13, 15
ETL ETAT TNT REET 13, 15
Be MI cc is ensescdctvececctstsccbcdsecasiccscckelsseteds 13, 15
Fourteenth Amendment .................ccseeeeeeeeeeeeeeees 12, 13, 15
STATE OF ALABAMA CONSTITUTION ........... 9,13, 15
The First Amendment Overbreadth Doctrine,
83 Harv. L. Rev. 844, 853 (1970).............ccccccccrcsccccccccsccesees 9
Vv
REFERENCE TO LOWER COURT OPINIONS
EXHIBITS
EXHIBIT “A”
Exhibit “A” attached to PETITIONER'S Petition For
Writ of Certiorari is the Order of the Circuit Court dated
August 3, 1993, denying PETITIONER’S Motion To
Dismiss The Indictment and Memorandum Opinion of the
court in support thereof. References to this document shall
be designated as “A”.
EXHIBIT “B”
Exhibit “B” attached to PETITIONER'S Petition For
Writ of Certiorari is the Order of the Circuit Court dated
August 12, 1993, granting PETITIONER’S Motion To
Postpone Trial in order to seek appellate review of the trial
court’s denial of PETITIONER’S Motion To Dismiss The
Indictment. References to this document shall be desig-
nated as “B”.
EXHIBIT “C”
Exhibit “C” attached to PETITIONER’S Petition For
Writ of Certiorari is the decision of the Alabama Court of
Criminal Appeals issued September 14, 1993, denying
PETITIONERS Petition For Writ Of Mandamus. References
to this document shall be designated as “C”.
EXHIBIT “D”
Exhibit “D” attached to PETITIONER'S Petition For
Writ of Certiorari is the Order issued by the Alabama
Court of Criminal Appeals dated September 30, 1993,
denying PETITIONER’S Application For Rehearing.
References to this document shall be designated as “D”.
EXHIBIT “E”
Exhibit”E” attached to Petition For Writ of Certiorari
is the Order issued by the Supreme Court of Alabama
dated February 4, 1994, denying PETITIONER'S Petition
For Writ of Certiorari to the Alabama Supreme Court.
References to this document shall be designated as “E”.
No.
In The
Supreme Court of the Gnited States
October Term, 1994
SUS AMELIA WOODARD,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
Petition for Writ of Certiorari to the
Supreme Court of Alabama
PETITION FOR WRIT OF CERTIORARI
JURISDICTION
The Decision of the Supreme Court of Alabama, deny-
ing Petitioner’s Petition For Writ of Certiorari to that court
was rendered on February 4, 1994. Jurisdiction to review
the judgment in the lower court by Writ of Certiorari is
vested in this Court; pursuant to Title 28 U.S.C. Sec.
1254(1).
RELEVANT STATUTORY PROVISION
This case involves the constitutionality of Section
13A-40(a)(15), Code of Alabama (1975 as rev.), which
reads as follows:
2
“(a) The following are capital offenses:
(15) Murder when the victim is less than
14 years of age.”
STATEMENT OF THE CASE
On January 7, 1993, your PETITIONER, SUSAN
AMELIA WOODARD, was arrested and charged with the
offense of Assault in the First Degree. Pursuant to this
charge, it was alleged that PETITIONER did cause serious
injury to Elizabeth B. (Dowe) Franklin, a minor child; by
shaking her.
On January 9, 1993, at approximately 0800 hours,
Elizabeth Franklin expired at Jackson Hospital. Thereafter,
the foregoing charge was amended, whereupon PETI-
TIONER was re-arrested and charged with capital murder,
in violation of §13A-5-40(a)(15), Code of Alabama (1975,
as rev.).
On April 9, 1993, this matter was submitted to the
MONTGOMERY COUNTY GRAND JURY for considera-
tion. After receiving testimony and the presentation of
related evidence, the GRAND JURY returned a True Bill;
indicting PETITIONER for the offense of capital murder,
as set forth below:
“The Grand Jury of said County charge that
before the finding of this indictment,
SUSAN AMELIA WOODARD, alias
SUSAN WOODARD ANDERSON,
whose name is otherwise unknown to the Grand
Jury, with intent to cause the death of another
person, cid cause the death of Elizabeth Dowe
Franklin, who was less that fourteen years of
age, by shaking and/or hitting her with her hand
or hands, in violation of Section 13A-5-40 of the
Code of Alabama,
against the peace and dignity of the State of
Alabama.”
3
Although not set forth in the foregoing indictment,
charges against PETITIONER were brought under the
auspices of Act 92-601, which amended Section 13A-5-40,
Code of Alabama, (1975) to read, inter alia, as follows:
(a) The following are capital offenses:
“(15) Murder when the victim is less than 14
years of age.”
On April 28, 1993, PETITIONER, by and through
counsel, filed a Motion to Dismiss the Indictment with the
trial court. As grounds therefore, it was asserted, inter
alia:
“1. That the capital murder statute, Section 13A-
5-40(a)(15), Code of Alabama, (1975) is uncon-
stitutional.
2. Yhat the capital murder statute, Section 13A-
5-40(a)(15), Code of Alabama, (1975) is uncon-
stitutional as applied to the Defendant’s case.
3. That the capital murder statute, Section 13A-
5-40(a)(15), Code of Alabama, (1975) is uncon-
stitutional as it is based on age, which, in itself,
is discriminatory.
4. That the victim is less than 14 years of age.
The age of the victim in itself, should not cause
Defendant to be charged with capital murder.
5. That the Defendant was attempting to resus-
citate and render aid and assistance to the victim
as the victim was unresponsive and comatose.
6. That there was no intent by the Defendant to
injure the victim in any manner. Therefore, as
“intent” is a requisite element of the underlying
offense of murder contained in the charge of capi-
tal murder, the present charge assessed against
Defendant cannot be sustained.
7. That the capital murder indictment was filed
in violation of the Defendant’s constitutional
rights as set out in the Fifth, Eighth and Four-
teenth Amendments to the Constitution of the
United States and also in violation of the Consti-
tution of the State of Alabama.”
On July 2, 1993, a hearing was held before the
Honorable WILLIAM A. GORDON, on the merits of PETI-
TIONER’S Motion To Dismiss. At the conclusion of this
hearing, JUDGE GORDON issued an Order on August 3,
1993; denying PETITIONER’S Motion to Dismiss
Indictment (“A”.11).
On August 6, 1993, PETITIONER, by and through
counsel, filed a Motion For Postponement of Trial with the
trial court. In this Motion, PETITIONER requested that
the trial be postponed until such time as the trial court’s
decision denying PETITIONER'S Motion To Dismiss The
Indictment had been submitted to the Court of Criminal
Appeals for review. In addition thereto, counsel for PETI-
TIONER averred to the trial court that said Motion was
made in an effort to negate the possibility of multiple trials
in the event of a ruling in favor of PETITIONER on her
motion. On August 9, 1993, in response thereto, the State
filed an objection to PETITIONER’S Motion For
Postponement of Trial.
On August 12, 1993, a hearing was held before the
Honorable WILLIAM A. GORDON, on the merits of PETI-
TIONER’S Motion For Postponement of Trial. At this hear-
ing, counsel for PETITIONER, expressed his intent to file
a Petition For Writ of Mandamus with the Court of
Appeals. At the conclusion of this hearing, Judge Gordon
issued an Order in which he granted PETITIONER’S
Motion For Postponement of Trial; contingent upon the fil-
ing, by counsel for PETITIONER, of a Writ of Mandamus
before the close of business August 13, 1993 (“B”.4).
On August 13, 1993, PETITIONER, by and through
counsel, filed a Petition For Writ of Mandamus with the
od — ne A ES A EO A TEE EE LEE IT LL LS a
a ce a. ae Se mE eS a ee
5
Alabama Court of Criminal Appeals, as directed by the
trial court. In this Petition, inter alia, PETITIONER
sought appellate review of the trial court’s denial of her
Motion to Dismiss the Indictment. On September 14, 1993,
in response thereto, that Court entered an Order denying
said Petition; holding that Section 13A-5-40(a)(15), Code
of Alabama (1975, as rev.) is not unconstitutional (“C”.20).
On September 28, 1993, PETITIONER, by and through
counsel, filed an Application For Rehearing of the forego-
ing ruling with the Alabama Court of Criminal Appeals.
On September 30, 1993, that Court issued an Order deny-
ing PETITIONER'S Application For Rehearing. (“D”.1).
On October 14, 1993, Petitioner by and through
Counsel, filed a Petition For Writ of Certiorari with the
Supreme Court of Alabama. On February 4, 1994, in
response thereto, the Alabama Supreme Court entered an
Order denying the petition.
Petitioner, Susan Amelia Woodard, by and through
counsel, prays that a Writ of Certiorari be issued to review
the Judgement of the Alabama Supreme Court.
STATEMENT OF THE FACTS
Your PETITIONER, SUSAN AMELIA WOODARD, is
a 37 year old female and single mother of a 3 year old
daughter. At the time of the incidents in question, PETI-
TIONER was duly licensed to operate a day care facility by
the Alabama Department of Human Resources. In accor-
dance therewith, the decedent, ELIZABETH DOWE
FRANKLIN, [hereinafter referred to as “DOWE”] was
placed in PETITIONER'S care and custody several days
each week, over the months preceding the incidents in
question.
The incidents in question, which form the underlying
basis for the charges assessed against PETITIONER
occurred on December 29, 1992 and January 6, 1993.
On the morning of December 29, 1992, DOWE was
placed in the custody of PETITIONER at PETITIONER'S
home, as usual. While playing, she and another toddler,
SHEA, apparently bumped into each other; knocking each
other to the floor. SHEA was getting up from the floor and
DOWE was laying on the floor; when PETITIONER ran to
the children and picked up SHEA. She then turned to
retrieve DOWE. As she attempted to raise her, DOWE
slipped from her grasp and fell back on the cushioned tile
floor. She exhibited no ill effects from this fall.
On the morning of January 6, 1993, some eight (8)
days later, Dowe was delivered to PETITIONER’S home by
her mother, DALE FRANKLIN. MRS. FRANKLIN stated
that the chi’’ had slept little the night before and had
refused all nourishment. Due to the child’s listless manner,
PETITIONER placed the child in the play pen to rest.
Dowe continued to be lethargic and repeatedly refused all
nourishment. While checking on her, PETITIONER
observed that the child had regurgitated. As she lifted her
to clean her, PETITIONER observed the child’s eyes
“appear to roll back in her head”. Alarmed, PETITIONER
immediately reacted by removing her from the play pen
and attempted to get a response from the child by briefly
shaking her. As PETITIONER reached for a paper towel
from the box on the floor, the child’s body went completely
limp. PETITIONER continued to administer to the child.
However, receiving no significant response, she immedi-
ately contacted the paramedics for assistance.
Subsequently, the child was hospitalized.
On January 7, 1993, PETITIONER was arrested and
charged with Assault in the First Degree. Pursuant to this
charge, it was alleged that PETITIONER did cause serious
injury to Elizabeth B. (DOWE) Franklin, a minor child; by
shaking her.
On January 9, 1993, at approximately 0800 hours,
Elizabeth Franklin expired at Jackson Hospital. Thereafter,
the foregoing charge was amended, whereupon PETI-
7
TIONER was re-arrested and charged with capital murder,
in violation of §13A-5-40(a)(15), Code of Alabama (1975,
as rev.); due solely to the age of the decedent. This subsec-
tion, enacted in 1992, amended the Alabama Death Act to
include the following as a chargeable capital offense:
“(a) The following are capital offenses:
(15) Murder when the victim is less
than fourteen years of age.”
On April 28, 1993, PETITIONER, by and through
counsel, filed a Motion to Dismiss the Indictment with the
trial court; alleging, inter alia, that this newly enacted pro-
vision of the Alabama Death Act was unconstitutional.
On July 2, 1993, a hearing was held before the
Honorable WILLIAM A. GORDON, on the merits of PETI-
TIONER’S Motion To Dismiss. On August 3, 1993, JUDGE
GORDON issued an Order on August 3, 1993; denying
PETITIONER'S Motion to Dismiss Indictment (“A”.11).
However, at the inception of this Order, the trial court
specifically noted that the statute in question, failed to set
forth any rationale, or substantive basis for the specific
provision under which PETITIONER was charged. In
making this observation, Judge Gordon noted:
“There is no legislative history or findings which
assists the Court in determining the legislative
purpose in enacting this new capital offense or
why 14 was chosen as the age component.”
Moreover, the Court noted that:
“When a state enacts death penalty legislation, it
is constitutionally required to enact a statu-
tory scheme that provides an adequate basis for
distinguishing a murder case in which the death
penalty may be imposed from those cases in
which such a penalty may not be imposed”; quot-
ing Zant v. Stephens, 462 U.S. 862, 886, 103
S.Ct. 2733, 2747 (1983). [Emphasis added].
In conclusion, JUDGE GORDON held that §13A-5-
40(a)(15), Code of Alabama (1975 as rev.), which pref-
aces the charge of capital murder solely on the age of the
victim and specifies no attendant, requisite factors, sur-
mounted PETITIONER'S constitutional challenge; ruling
that it “sufficiently narrows the class of persons who are
ultimately death eligible” (“A”.6). However, JUDGE GOR-
DON contemporaneously acknowledged that the Alabama
Death Act is not uniform in its substantive definitions of
capital offenses (“A”.4).
On August 6, 1993, PETITIONER, by and through
counsel, filed a Motion For Postponement of Trial with the
trial court. In this Motion, PETITIONER requested that
the trial be postponed until such time as the trial court’s
decision denying PETITIONER'S Motion To Dismiss The
Indictment had been submitted to the Court of Criminal
Appeals for review.
On August 12, 1993, a hearing was held on the merits
of PETITIONER'S Motion For Postponement of Trial. At
this hearing, counsel for PETITIONER, expressed his
intent to file a Petition For Writ of Mandamus with the
Court of Appeals. In accordance therewith, counsel repre-
sented to JUDGE GORDON that primary argument would
be predicated on the issue that the newly enacted statute
under which PETITIONER was charged, predicating the
capital offense solely on the death of a child under 14 years
of age is an arbitrary and capricious legislative act which
violates both the United States Constitution and the
Constitution of Alabama. At the conclusion of this hear-
ing, JUDGE GORDON, noting that PETITIONERS claims
presented a question of first impression in Alabama,
issued an Order in which he stated:
“The Court recognizes the grounds for the State’s
objection to Woodard’s [PETITIONER] motion. In
addition, the Court, as does the State, recognizes
that no party wishes to try this case twice in the
event Section 13A-5-40(15) is ultimately found to
violate the state or federal constitutions.”
9
Continuing, the trial court stated:
“Under the circumstances this Court also believes
that Woodard should have the opportunity to
seek appellate review before the case is tried.”
In conclusion, that court stated:
“For the foregoing reasons, it is ORDERED that
the trial of this case is postponed if Woodard’s
counsel files a petition for writ of mandamus
before the close of business on August 13, 1993.”
(“B”.4).
On August 13, 1993, PETITIONER, by and through
counsel, filed a Petition For Writ of Mandamus with the
Alabama Court of Criminal Appeals. In this Petition, inter
alia, PETITIONER sought appellate review of the trial
court’s denial of her Motion to Dismiss the Indictment
and moved that court to grant her Petition For Writ of
Mandamus.
On September 14, 1993, the Alabama Court of Criminal
Appeals entered an Order denying the foregoing Petition.
In this decision, the Alabama Court of Criminal Appeals
addressed, inter alia, three (3) points of inquiry, as set
forth in the Petition. First, the Court stated that §13A-5-
40(a)(15), Code of Alabama (1975 as rev.) is not constitu-
tionally overbroad. Quoting The First Amendment
Overbreadth Doctrine, 83 Harv. L. Rev. 844, 852 (1970),
the court noted that “Historically, the overbreadth doctrine
has been used by the federal courts to prevent a chilling
effect on First Amendment freedoms...”. However, the
Court acknowledged that the overbreadth doctrine under
the Alabama Constitution has been applied in due
process cases not involving first amendment freedoms;
Ross Neely Express, Inc. v. Alabama Department of
Environmental Management, 437 So.2d 82 (Ala. 1983).
Continuing, the Court noted that in Ross Neely Express,
supra, JUSTICE ADAMS wrote;
10
“The right to due process is guaranteed to the citi-
zens of Alabama under the Alabama Constitution
of 1901, Article 1, Sections 6 and 13....The courts
have found that this right is violated when a
statute or regulation is unduly vague, unrea-
sonable or overbroad...”(“C”.4-5). [Emphasis
added].
Secondly, the Alabama Court of Criminal Appeals
held that §13A-5-40(a)(15), Code of Alabama (1975 as
rev.) is not constitutionally vague. Quoting Jordan v.
DeGeorge, 341 U.S. 223, 71 S.Ct. 703, 95 L.Ed. 886
(1951), the Court stated that the essential purpose of the
“void for vagueness” doctrine is to warn individuals of the
criminal consequences of their conduct. The Court con-
cluded that §13A-5-40(aX15) provided sufficient warning of
the criminal conduct outlined therein.
Thirdly, the Alabama Court of Criminal Appeals held
that §13A-5-40(a)(15), Code of Alabama (1975 as rev.) “is
not unconstitutional because it is arbitrary, or because it
fails to sufficiently narrow the class of people that may
become “death eligible”. Quoting from Gregg v. Georgia,
428 U.S. 153,188, 96 S.Ct. 2909, 2932, 49 L.Ed.2d 858
(1976), which quoted the decision in Furman v. Georgia,
408 U.S. 238, 313, 92 S.Ct. 2726, 2763, 33 L.Ed.2d 346
(1972); the Court stated:
“A capital sentencing scheme must, in short, pro-
vide a ‘meaningful basis for distinguishing the
few cases in which [the death penalty] is imposed
from the many cases in which it is not’”.
“This means that if a State wishes to authorize
capital punishment, it has a constitutional
responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious
infliction of the death penalty.”
See also, Godfrey v. Georgia, 446 U.S. 420, 427-428, 100
S.Ct. 1759, 1764, 64 L.Ed.2d 398, 406 (1980).
te eee ee ne ne ee ee
ce em re rr ee re re a ee re ee i ee ee ee ee eee -_——-
11
Fourth, the Court of Criminal Appeals held that
Alabama’s capital offense statutes, including §13A-5-
40(a)(15), Code of Alabama (1975, as rev.) are neither
arbitrary or capricious and therefore, the subsection in
question is not unconstitutional (“C”.20). However, it
should be noted that the judicial authority cited by that
Court in support of this position pre-dated the adoption of
and inclusion of this provision in the Alabama Death Act
(“C”.10).
In conclusion, the Alabama Court of Criminal Appeals
held that §13A-5-40(a)(15), Code of Alabama (1975, as
rev.) is not violative of any equal protection right afforded
under the UNITED STATES CONSTITUTION and The
Alabama Constitution. In support of this position, the
Court reiterated its decision in Goodson v. State, 588
So.2d 509, 514 (Ala.Cr.App. 1991) in which it held:
“The Equal Protection Clause of the Fourteenth
Amendment goes no further than to prohibit
invidious discrimination...If there is some reason-
able basis for the recognition of separate classes
and if the disparate treatment of the classes has
a rational relation to the object sought to be
achieved by the lawmakers, the Constitution is
not offended. The transgression arises only when
the classification rests upon grounds wholly irrel-
evant to achievement of the State’s objective; the
separate treatment must admit of but one conclu-
sion beyond a rational doubt, i.e., that the basis
therefore is arbitrary and unreasonable and
without relevance to the legislative goal.”
Thereafter, the Alabama Court of Appeals stated that the
Petition For Writ of Mandamus was denied (“C”.20).
On September 28, 1993, PETITIONER, by and through
counsel, filed an Application For Rehearing of the foregoing
ruling with the Court of Criminal Appeals. On September
30, 1993, in response thereto, that court issued an Order
denying PETITIONER'S Application For Rehearing (“D”.1).
a en eet
12
On October 14, 1993, PETITIONER, by and through
counsel, filed a Petition For Writ of Certiorari with the
Supreme Court of Alabama.
On February 11, 1994, the Supreme Court of Alabama
issued an Order denying this Petition (“E”.1).
ARGUMENT
THE DECISION OF THE SUPREME COURT OF
ALABAMA HOLDING A DEATH PENALTY STATUTE
WHICH PREDICATES “DEATH ELIGIBILITY”
SOLELY ON THE AGE OF THE VICTIM, WITH NO
OTHER CONTRIBUTING OR ATTENDANT FAC-
TORS REQUISITE TO ITS APPLICABILITY TO BE
CONSTITUTIONALLY VALID, IS ERRONEOUS AND
CONTRAVENES ESTABLISHED JUDICIAL PRECE-
DENT BY THIS COURT, REGARDING A DEFEN-
DANT’S CONSTITUTIONAL RIGHTS UNDER THE
FIFTH, EIGHTH AND FOURTEENTH AMEND-
MENTS OF THE UNITED STATES CONSTITUTION.
Section 13A-5-40 (a) (15) of the capital murder statute,
making age “the sole, aggravating factor for estab-
lishing a capital offense does not adequately narrow
the class of murders that may result in imposition of
the death penalty. Accordingly it is violative of the
Due Process protection afforded under the Fifth and
Fourteenth Amendments of the UNITED STATES
CONSTITUTION.
Therefore, the dispositive issue argued herein to this
Court by PETITIONER is whether the statutory provision,
under which Petitioner is charged, that automatically
turns the murder of a person less than fourteen years of
age, — without further, attendant circumstances —
into a capital crime is sufficiently tailored to avoid arbi-
trary and capricious outcomes. Godfrey v. Georgia, 446
U.S. 420 (1980). The State contends that it is. Petitioner,
however, maintains that Section 13A-5-40(a)(15), Code of
13
Alabama (1975 as rev.) is unconstitutional because the
unavoidable result of its application is an application of
law in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the UNITED STATES CONSTITUTION
and Article I, Section 1, 6, and 15 of the Alabama
Constitution.
In support of this position, Petitioner, by and through
counsel predicates her argument with the advancement of
two vital and important points. First, Petitioner does not
ask this Court to decide whether it is within the Legisla-
ture’s purview to accord special protection to children of
tender years. The fact that the Legislature has that right
and that obligation is not in dispute. Secondly, Petitioner
does not ask this Court to decide whether the Legislature
could have adopted a different approach to the classifica-
tion of capital offenses in Alabama, which might have ren-
dered Section 13A-5-40(a)(15) constitutional. The fact that
some states have chosen to enact statutes that narrow the
cases eligible for the death penalty at the sentencing phase
alone does not alter the fact that this state chose, as a mat-
ter of policy, to adopt a two-tier classification scheme to
satisfy the due process requirements of Furman v.
Georgia, 408 U.S. 238 (1972), Gregg v. Georgia, 428 U.S.
153 (1976), and Woodson v. North Carolina, 428 U.S.
280 (1976).
Under the provision of the original enactment of the
Alabama Death Act, Section 13A-5-40, Code of Alabama
(1975), the Alabama Legislature determined that,
although all murders are felonies, only certain murders
would be classified as capital offenses. Each of those mur-
ders had to be characterized by some aggravating factor
that distinguished it from other murders. As set forth by
this Court in Beck v. State, 396 So.2d 645 (Ala. 1980),
“each of the crimes specified requires an intentional killing
with aggravation.” For example, an intentional killing
committed during a kidnapping, rape, robbery, or night-
time burglary of an occupied dwelling, is designated as an
“offense committed under aggravated circumstances.” See,
A ty Se AR ARR
14
e.g., Ex parte Johnson, 620 So.2d 709 (Ala. 1993) (murder
occurring during robbery). However, a murder perpetrated
without one of the qualifying factors is not even indictable
as a capital felony; no matter how brazen, cruel or
depraved the crime might be. £ee, e.g., Ex parte Jackson,
614 So.2d 405 (Ala. 1993) (murder of a bystander killed
when a bullet intended for the occupant of a car missed its
target could not qualify as a capital offense because the
statute is limited to victims shot while inside a motor vehi-
cle}; and Ex parte Kyzer, 399 So.2d 330, 337 (Ala. 1981).
A second, and equally, vital component of the Alabama
mandated “narrowing scheme”, is a separate sentencing
hearing at which the jury would weigh all mitigating evi-
dence introduced by the defendant against specific aggra-
vating circumstances set forth in Section 13A-5-49, Code
of Alabama (1975 as rev.), (formerly Section 13-11-6,
Code of Alabama [1975 as rev.]). See, Beck, supra. The
aggravating circumstances to be considered at sentencing
were held to be distinct from those that defined the mur-
der as a capital offense, even though many of them were
identical. Jd. at 663.
In the case at bar, the Supreme Court of Alabama, in
denying the Petition For Writ of Certiorari, upheld the rul-
ings of the Alabama Court of Criminal Appeals and the
trial court; both of which held that the provision of the
Alabama Death Act predicating a capital offense solely on
the age of the victim, is constitutional because (1) it con-
tains an aggravating element that narrows the class of
crimes that can be considered capital — the age of the vic-
tim - and (2) the State must still prove that at least one of
the statutory aggravating factors in Section 13A-5-49
exists which outweighs any mitigating evidence intro-
duced. However, Petitioner avers to this Honorable Court
that these holdings beg the issue presented herein.
Although the age of the victim certainly restricts the
number of child murders that are deemed to be capital
offenses, it does not sufficiently narrow the category in
15
order to satisfy the commands of the Fifth, Sixth, Eighth,
and Fourteenth Amendments of the UNITED STATES
CONSTITUTION, nor the comparable provisions of the
Alabama Constitution. This provision of the Capital
Murder Statute, as presently written, does not distinguish
between the quick or reckless killing of a child under the
age of 14 years and the killing of such person under cir-
cumstances that reveal wanton cruelty, brutal behavior, or
fiendish purposes. As this portion of the statute is
presently enacted, every child who is the victim of exces-
sive corporal punishment, every child who dies as the
result of ignorant or inappropriate physical handling by
an adult, every child who is killed by someone who actu-
ally intended to kill another, spawns a capital murder
defendant — as long as the child is under 14 years of age.
Yet a child who is brutalized or tortured before being
killed but is 14 years of age, or older, or a child who is
viciously, wantonly, or intentionally killed by another
child of tender years, produces someone charged only
with murder. The tremendous disparity between the
potential punishments applicable to a conviction for each
of these offenses produces the freakish outcome, the lack of
substantive and procedural due process; indeed, precisely
the type of constitutional infirmity that this Honorable
Court found intolerable in Furman, supra and Gregg,
supra.
The dilemma inherent in Section 13A-5-40(a)(15) is
that by making the age of the victim the sole, aggravating
element which elevates a particular murder into a capital
offense, the State of Alabama has created a law that sub-
jects certain hapless people to a capital murder indict-
ment; although their actions are less culpable than the
actions of others charged only with murder and, therefore,
subject to no more than a life sentence. Accordingly, in this
manner, Section 13A-5-40(a)(15), Code of Alabama (1975
as rev.) is clearly both overbroad and underinclusive.
Although the State of Alabama would argue that the
weighing of aggravating and mitigating circumstances,
16
which occurs at the sentencing phase of a trial suffices to
meet the requirements of due process; this argument is
disingenuous and non-persuasive. The mere indictment of
a person for capital murder radically alters the compro-
mise value of the case. As this Court has repeatedly noted,
the nature of a criminal charge often has profound conse-
quences on the willingness of a jury to convict, or the
incentive of a defendant to plead to a lesser included
offense; Morris v. Mathews, 475 U.S. 237 (1986); Harris
v. Rivera, 454 U.S. 339 (1981); Ballew v. Georgia, 435
U.S. 223 (1978), and Tapp v. Lucas, 658 F.2d 383 (5th Cir
1981), citing Price v. Georgia, 398 U.S. 323, 331 (1970).
It is patently unfair to permit the initial indictment of
someone under the auspices of a capital murder statute,
when the only possible sentences upon conviction are life
without parole, or death. In this vein, PETITIONER avers
that the theory that the jury’s consideration of aggravating
and mitigating circumstances during the sentencing phase
is adequate protection against arbitrary and capricious
punishments is without constitutional persuasion.
PETITIONER proffers the following rationale in sup-
port of her position. First, a jury hearing a capital murder
case is “death-qualified”; Lockhart v. McCree, 476 U.S.
162 (1986) (removal for cause, from jury that decides guilt
phase of capital case, of persons whose attitudes toward
capital punishment would prevent, or substantially impair
performance of their duties at punishment phase does
not violate Sixth Amendment right to impartial jury);
Wainwright v. Witt, 469 U.S. 810 (1985) (state court’s
determination regarding exclusion of juror for cause
because of views on capital punishment is finding of fact
entitled to presumption of correctness). Furthermore,
empirical studies have established that death-qualified
juries are more predisposed to impose or recommend a sen-
tence of death than those jurors who have not been so
qualified. Therefore, any defendant charged with capital
murder is placed at an increased risk of a sentence based
on caprice or emotion.
17
Secondly, the only aggravating circumstance under
Section 13A-5-49, Code of Alabama (1975) possibly
applicable to apply to cases such as PETITIONER'S is that
the “offense was especially heinous, atrocious or cruel com-
pared to other capital offenses.” Where the murder of a
child results from bad parenting skills, ignorance, or inad-
equate impulse control, as so many murders of young chil-
dren do, the defendant is placed in the untenable position
of having to argue that this crime was not heinous, atro-
cious or cruel. Even with the State’s restriction of the
“heinous, atrocious or cruel” factor to “those conscienceless
or pitiless homicides which are unnecessarily torturous to
the victim,” Ex parte Kyzer, 399 So.2d 330, 334 (Ala.
1981), the innocence and helplessness of a child victim will
always be compelling evidence in the hands of a skillful
prosecutor with an unabiding penchant for securing a sen-
tence of death. Given the intrinsically inherent sympathy
that most adults have for children and society's natural
inclination to find the murder of a child by an adult partic-
ularly disturbing, there is a definite and substantial risk
that a judge or jury would find the offense charged to be
especially “heinous, atrocious or cruel”. As this Honorable
Court stated in Beck v. Alabama, 447 U.S. 625, 637
(1980),
“[s]uch a risk cannot be tolerated in a case in
which the defendant’s life is at stake. As we have
often stated, there is a significant constitu-
tional difference between the death penalty
and lesser punishments.” [Emphasis Added].
18
CONCLUSION
COMES NOW, Your PETITIONER, SUSAN AMELIA
WOODARD, and by and through counsel, respecfully
moves this Honorable Court, to grant this Writ of
Certiorari and to proceed under its rules to review the
matters complained of. Furthermore, PETITIONER moves
this Honorable Court to reverse the judgment of the
Alabama Supreme Court and direct that court to instruct
the Alabama Court of Criminal Appeals to grant PETI-
TIONER’S Petition For Writ of Mandamus and remand
this cause to the trial court with instructions to grant
PETITIONER’S Motion To Dismiss The Indictment, as
well as granting such other relief to which as PETI-
TIONER may be entitled.
URICE S. BELL
Attorney For PETITIONER
547 South Lawrence Street
Montgomery, Al 36104
(205) 262-2719
19
REQUEST FOR ORAL ARGUMENT
COMES NOW YOUR PETITIONER, by and through
counsel, and respectfully moves this Honorable Court to
grant Oral Argument with respect to the issues contained
herein. In support of this request, PETITIONER avers
that determination of these issues will be of considerable
importance to the interests of the citizens of the State of
Alabama the citizenry of the United States and the general
public as a whole. Furthermore, the complexity of said
issues raises certain judicial inquiry. A proper resolution of
these issues requires oral argument to sufficiently explain
certain facets of the case.
Respectfully submitted this the 5th day of May, 1994.
47 South Lawrence Street
Montgomery, Al 36104
(205) 262-2719
20
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the fore-
going upon the Honorable William C. Gordon, Montgomery
County Circuit Judge, 101 South Lawrence Street,
Montgomery, Alabama, 36104; the Honorable Jimmy
Evans, Attorney General of Alabama, State House, 11
South Union Street, Montgomery, Alabama, 36130 and the
Honorable Ellen Brooks, District Attorney, 101 South
Lawrence Street, Montgomery, Alabama, 36104, Hon. Lane
Mann, Clerk, Alabama Court of Criminal Appeals, 300
Dexter Avenue, Montgomery, Alabama, 36130 and the
Honorable Robert Esdale, Clerk, Supreme Court of
Alabama, 300 Dexter Avenue, Montgomery, Alabama,
36130, by placing a copy of same in the United States
Mail, postage prepaid, addressed as above, the last known
address of each, on this the 5th day of May, 1994.
petite? GLA
URICE S. BELL
Attorney For PETITIONER
547 South Lawrence Street
Montgomery, Al 36104
(205) 262-2719
EXHIBITS
The following exhibits contain both motions filed by your
petitioner and orders of the courts in response thereto. In
order to comply with the pagination/printing requirements
of rule 33.1(c) Federal Rules of Procedure, all motions
and orders issued by the Circuit Court of Montgomery
County, Alabama; the Alabama Court of Criminal Appeals
and the Supreme Court of Alabama have been re-paginated.
neenren
App. 1
CIRCUIT COURT
FIFTEENTH JUDICIAL CIRCUIT
STATE OF ALABAMA,
Plaintiff,
v. CASE NO. CC-93-143-G
JAMES JOHNSON, JR..,
et cetera,
Defendant,
ORDER
STATE OF ALABAMA,
Plaintiff,
v. CASE NO. CC-93-604-G
SUSAN AMELIA WOODARD,
Defendant.
/
In accordance with the memorandum opinion
entered this date, it is ORDERED that the Defendants’
motions to dismiss are denied.
DONE and ORDERED this 3rd day of August, 1993.
/s/ William Gordon
WILLIAM GORDON
CIRCUIT JUDGE
cc: Robert Lusk, Esq.
Randy McNeill, Esq.
Maurice Bell, Esq.
Richard Keith, Esq.
Richard Cohen, Esq.
Dean Mooty, Esq.
EXHIBIT “A”
Te RL A ROLE te a5 oP IS? ARC IEE 728 ——--—--
App. 2
CIRCUIT COURT
FIFTEENTH JUDICIAL CIRCUIT
STATE OF ALABAMA,
Plaintiff,
v. CASE NO. CC-93-143-G
JAMES JOHNSON, JR.,
et cetera,
Defendant,
MEMORANDUM OPINION
STATE OF ALABAMA,
Plaintiff,
v. CASE NO. CC-93-604-G
SUSAN AMELIA WOODARD,
Defendant.
James Johnson, Jr., a/k/a Jamie Luster (Johnson) is
indicted for the capital offense in the murder of Jalesa
Marshay McQueen, and Susan Amelia Woodard (Woodard)
is indicted for the capital offense in the murder of
Elizabeth Doyle Franklin. Ala. Code Section 13A-5-
40(aX15) (1975). Johnson and Woodard have filed motions
to dismiss the indictments on substantially the same
grounds; and the cases are consolidated for the singular
purpose of ruling on these motions.’
1. Woodard adopted the brief and arguments of counsel for Johnson.
Neither she nor her counsel were present at the argument; however,
they indicated no inclination to be present or offer further argument;
and they have not objected to this procedure.
App. 3
1. FACTS
Johnson, an adult, is alleged to have murdered Jalesa
McQueen, a child one year and 145 days old, “by hitting,
shaking and/or kneeing her.” Woodard, an adult, is alleged
to have murdered Elizabeth Franklin, a child one year and
93 days old, “by shaking and/or hitting her with her hand
or hands.”
2. THE ALABAMA DEATH ACT
1992 Ala. Acts 601 further amended the Alabama
Death act, 1981 Ala. Acts 178 (the Act) (codified at Ala.
Code Section 13A-5-39 to -57 (1975)) by, among other
things, adding three new capital offenses. The offense at
issue is defined in 1992 Ala. Acts 601 Section 1(aX15)
which provides, as follows:
(a) The following are capital offenses:
(15) Murder when the victim is less than fourteen
years of age.
There is no legislative history or findings which assist
the Court in determining the legislative purpose in enact-
ing this new capital offense or why 14 was chosen as the
age component.
3. CONTENTIONS
Johnson and Woodard contend that Section 1(aX 15) is
arbitrary, over broad and discriminatory as enacted and as
applied because it predicates the capital offense solely on
the age of the victim, and, therefore, does not provide a
“meaningful basis for distinguishing cases in which death
is imposed from the many cases in which it is not.”
Johnson’s motion at paragraph 4, quoting Gregg vy,
Georgia, 428 U.S. 153, 188 (1976). They further argue
that the statutory sentencing scheme does not sufficiently
narrow the class; therefore, the Act violates the Eighth
and the Fourteenth Amendments to the United States
Constitution, and Article I, Section 1, 6 and 15 of the
Alabama Constitution.
TE ee UE TAS, Se ae et ae ee SRA —
App. 4
The State contends that (1) because the Alabama
Criminal Code predicates many felony offenses solely on
the age of the victim or the age of the victim and actor,”
there is no constitutional impediment to defining a capital
offense by the age of the victim; (2) the overbreadth doc-
trine does not apply because there is no first amendment
right at issue, and if it does apply, the offense at issue is
not over broad because it is specific in defining the offense
which is death eligible; (3) Section 1(a)(15) does not violate
the due process clause because there is a legitimate rela-
tionship to the public purpose in passing the legislation;
and (4) it does not violate due process because it operates
on all persons alike and does not subject individuals to the
arbitrary exercise of the powers of the government.
4. THE MERITS
“Capital punishment . . . is a legislative choice, not a
judicial one.” Beck v, State, 396 So.2d 645, 655 (Ala. 1980).
However, when a state enacts death penalty legislation, it
is constitutionally required to enact a statutory scheme
that “Provides an adequate basis for distinguishing a mur-
der case in which the death penalty may be imposed from
those cases in which such a penalty may not be imposed.”
Zant v. Stephens, 462 U.S. 862, 886 103 S.Ct. 2733, 2744
(1983). “(T]he narrowing function required for a regime of
2. See, e.g., Alabama Code § 13A-6-45 (interference with custody);
§ 13A-6-61(a)(3) (rape first degree); § 13A-6-62(a)(1) (rape second
degree); § 13A-6-63(a)(3) (sodomy first dogree); § 13-A-6-64(a)(1)
(sodomy second degree); § 13A-6-65(aX3) (sexual misconduct); § 13A-6-
66(aX3) (sexual abuse first degree); § 13A-6-67(aX2) (sexual abuse sec-
ond degree); § 13A-6-69 (enticing a child); § 13A-12-191 (dissemination
or public display of obscene matter); § 13A-12-196 (parent or guardian
permitting child, ward or dependent under 17 to participate in produc-
tion of obscene matter); § 13A-12-197 (production of obscene matter
depicting person under 17 years of age involved in obscene acts); § 13A-
12-200.5 (sale or distribution of obscene material to minors); § 13A-12-
215 (sale, et cetera, of a controlled substance by person over 18 to a
person under 18); § 13A-13-5 (abandonment of child less than 18); and
§ 13A-13-6(1) & (2) (endangering the welfare of a child.)
App. 5
capital punishment may be provided by either of two ways:
The legislature may itself narrow the definition of capital
offenses, . . . , so that the jury finding of guilt response to
this concern, or the legislature may more broadly define
capital offenses and provide for narrowing by jury findings
of aggravating circumstances at the penalty phase.” Lowen-
field v. Phelps, 484 U.S. 231, 246, 108 S.Ct. 546, 555 (1988).
The Act is not uniform in its substantive definitions of
the capital offenses. Under the Alabama Act, it can be said
that the capital offenses can be grouped into four cate-
gories: (1) nature of the criminal act, Section 13A-5-
4MaX1), (2), (3), (4), (8), (9) & (10); (2) special status of the
victim, Section 13A-5-40(a)(5), (11), (14) & (15); (3) a
combination of the nature of the criminal act and special sta-
tus of the victim, Section 13A-5-4aX16) & (17); and (40 spe-
cial status of the accused, Section 13A-5-40(6) & (13). Joseph
A. Colquitt, Pitfalls in Capital Cases, at 5 - 6 (July 14, 1993).
The Act narrows the class of people convicted of mur-
der who are death eligible in three ways. First it narrows
the class through definition of the capital offenses. Second,
it further narrows the class at the penalty phase by requir-
ing that the state must prove at least one aggravating cir-
cumstance beyond a reasonable doubt (Section 13A-5-49).*
Third, it still further narrows the class by providing auto-
matic appellate review when the death penalty is imposed,
which includes proportionality review (Section 13A-5-53).
Johnson and Woodard have cited, by way of example,
several capital punishment statutes‘ where the capital
offense based on age “Characteristically require[s] some
3. See Zant v. Stephens, 462, 103 S.Ct. 2747 (1983) (holding that
under Georgia’s sentencing scheme, the requirement that the jury find
at least one aggravating circumstance narrowed the class of persons eli-
gible for the death penalty if the aggravating circumstance is objec-
tively defined).
4. Ill. Code § 9-1(bX7); Md. Ann. Code Art. 27, § 413(5); Miss. Code
Ann. § 97-3-19; Mont. Code Ann. § 46-18-303; and Va. Code Ann. § 18.2-
31.8.
TE Pa ae Be
App. 6
other aggravating factor also be present before the defen-
dant is eligible for the death penalty.” Johnson's motion,
para. 3 at 7. They argue that Alabama, contrary to these
statutory schemes, “allows a conviction for capital murder
simply because of the age of the murder victim with any
other additional factor.” Id.
All of the capital offenses defined in the Act require
murder plus one or two additional components, e.g., mur-
der during the commission of another specified criminal
offense (one additional component), murder of any police
officer while such officer is on duty (two additional compo-
nents). Section 1(aX15) requires an additional component,
i.e., that the victim is less than 14 years of age. In addi-
tion, before the defendant is death eligible, the state must
prove beyond a reasonable doubt at least one of the aggra-
vating circumstances specified in Section A-5-49. In this
regard, the Court notes that no aggravating circumstance
in Section 13A-5-49 mirrors the capital offenses at issue.*
Therefore, it is incorrect to suggest that the offense is
death eligible based solely on the age of the victim.
The Court holds that Section 1(aX15), when consid-
ered in context with the other provisions of the Act, suffi-
ciently narrows the class of perscns who are ultimately
death eligible. the Illinois death statute is sufficiently
5. In the Alabama Death Act many aggravating circumstances mir-
ror the capital offenses. Thus, in some cases when the state proves the
capital offense beyond a reasonable doubt, it simultaneously proves the
aggravating circumstance. Put another way, the defendant automati-
cally becomes death eligible in the guilt phase of the trial. When no
aggravating circumstance mirrors the capital offense, the defendant
does not become death eligible until the state proves an aggravating cir-
cumstance in the punishment phase. See Border v. Armonstrout, 713
F.Supp. 1573, 1558 (D. Mo. 1989).
Granted, at least some of the evidence which may tend to prove an
aggravating circumstance may be admissible in the guilt phase; how-
ever, such evidence is not required to be introduced, and under some
circumstances, will not be admissible. An attempt to introduce such evi-
dence could rise to the level of constitutional prejudice to the defendant.
App. 7
similar to the Alabama Act so that a comparison of the two
statutory regimes is possible and is supportive of the
Courts’ holding.
The Illinois death statute, 720 ILCS 5/9-1 (1992 State
Bar Edition), requires that for a defendant to be death eli-
gible he must (1) be found guilty of murder in the first
degree; (2) the defendant must be 18 years of age or older;®
and (3) the murder must have been accompanied by at
least one statutory aggravating factor.’ One of the aggra-
vating factors, Section 5/9-1(bX7), provides as follows:
(7) the murdered individual
of age and the death resulted from exceptionally
brutal or heinous behavior indicative of wanton
cruelty.
If the prosecution requests a sentencing hearing (for the
purpose of seeking the death penalty), the fact finder, if it is
a jury, must unanimously find beyond a reasonable doubt
that one or more Section 5/9-1(b) factors exist,° and then
“shall consider aggravating and mitigating factors as
instructed by the court and shall determine whether the
sentence of death should be imposed. If the jury determines
unanimously that there are no mitigating factors sufficient
to preclude the imposition of the death sentence, the court
shall sentence the defendant to death.” Section 5/9-1(g).
The procedure is the same when the fact finder in the sen-
tencing hearing is the judge. Section 5/9-1(h). A sentence of
death is automatically reviewable. Section 5/9-1(i).
6. Under the Illinois statute, a defendant less than 18 years of age
cannot be punished by death.
7. The Illinois death statute also allows consideration of non-enu-
merated aggravating factors. § 5/9-1(b).
8. Under the Illinois statute it is conceivable that the trial will have
three stages: a guilt phase to determine if the defendant is guilty of first
degree murder, a second phase to determine if any § 5/9-1(b) aggravat-
ing factor is present and, if the state proves an aggravating factor
beyond a reasonable doubt, a third phase, to determine if the proper
punishment is death.
App. 8
In Illinois, a defendant is death eligible if he is found
guilty of first degree murder; he is 18 or older; the victim
was under 12 years of age; and the victim’s desta resulted
from exceptionally brutal or heinous behavior indicative of
wanton cruelty. In Alabama, a defendant is death eligible
if he is found guilty of murder, the victim was under 14
years of age and, for instance, the capital offense was espe-
cially heinous, atrocious or cruel compared to other capital
offenses’ (Section 13A-5-49(8)). Notwithstanding the proce-
dural difference in the statutes, a defendant can be sen-
tenced to death in either state only if there is a murder
plus aggravation. In framing its statute, Illinois chose to
place two components in the Section 5/-1(bX7) aggravating
factor; Alabama chose to place an additional component in
the definition of the capital offense. Under either proce-
dure, the narrowing process is the same. Additionally, and
importantly, the Section 5/9-1(bX7) aggravating factor is not
facially invalid and “adequately narrows the group of per-
sons eligible for death from others guilty of murder.” People
y. Odle, 538 NE 2d 428, 440-41 (Ill. 1988), cert. denied, 110
S.Ct. 3289 (1990), reh’g denied, 111 S.Ct. 16 (1990).
Neither Johnson nor Woodard have cited the Court to
any authority which held a death punishment statute
unconstitutional because the statute defines the capital
offense based on the age of the victim or because the
statute considered the age of the victim as an aggravating
factor. The authority appears to be to the contrary. People
vy. Odle. There are decisions of the United States Supreme
Court which utilized a proportionality analysis to find that
9. This aggravating circumstance, as construed and applied by the
Alabama Courts, serves the narrowing function required by the Eighth
Amendment to the United States Constitution. Lindsey v. Thigpen, 875
F.2d 1509 (11th Cir. 1989). See Lewis v, Jeffers, .§ US. 110
S.Ct. 3092 (1990) (Arizona statutory aggravating circumstance that
crime was committed “in especially heinous, cruel or depraved manner”
was not unconstituticnally vague and over broad when Arizona Supreme
Court narrowed its application by construction and consistently applied
the narrowed interpretation).
App. 9
a particular offense does not justify the death penalty, e.g.,
ida, 458 U.S. 782 (1982) (the death penalty
is unconstitutional where the defendant is convicted of a
felony murder), Coker v, Georgia, 433 U.S. 584 (1977) (the
death penalty is constitutionally excessive punishment for
rape). However, when, in the opinion of the legislature,” a
class of victims require special protection and the statu-
tory scheme provides a meaningful method of narrowing
the class of defendants who are death eligible, the statute
is not constitutionally infirm.
The age criteria in the Act has a historical basis in
Alabama law. At common law a child over 7 but less than
14 was presumed to be incapable of committing a felonious
criminal offense. Hampton vy, State, 55 So. 1018 (Ala. Ct.
App. 1911). This presumption was rebuttable. Section 13A-
3-3 changed the common law, and it provides that no per-
son under 14 can be prosecuted for a criminal offense.
Historically, the rationale given for this rule was that the
child lacked sufficient discretion to appreciate the crimi-
nality of his conduct, Hampton; or that the child did not
possess sufficient mental capacity or lacked the requisite
guilty knowledge of the wrongfulness or wickedness of the
act charged, Key v, State, 58 So. 936 (Ala. Ct. App. 1912);
or the child could not comprehend the wrongfulness of his
guilty act, Ragsdale v, State, 67 So. 783 (Ala. Ct. App. 1914).
The recognition of 14 as a level of maturity sufficient
to shift responsibility to a child for his acts is reflected in
other areas of Alabama law. Section 15-16-2 provides that
every person over 14 is presumed, in terms of iheir mental
state, to be responsible for their acts. Section 26-2A-76 pro-
vides that a minor 14 or older may nominate a guardian,
and Section 26-2A-72 provides that a minor 14 or older
may prevent the appointment of a particular guardian.
Section 12-15-34 provides that the juvenile court can
10. The specification of punishments is a question of legislative pol-
icy. California v. Ramos, 463 U.S. 992 (1983),
App. 10
transfer a case to the circuit court for prosecution only
when the child is over 14 years of age."
The Court concludes that inasmuch as the legislature
has concluded as a matter of public policy that children
over 14 are mature enough to be responsible for their acts,
the converse is likewise true, i.e., that children under 14
require special protection. Therefore, the legislatures’ pol-
icy decision to select 14 as a component of the capital
offense is neither arbitrary nor capricious.
Based on the foregoing the Court holds that the Act,
when considered as a whole and in historical context, nar-
rows the class of defendants in a rational and principled
manner, and it is not unconstitutional under the United
States Constitution or the Alabama Constitution. The
motions to dismiss are due to be denied.
An appropriate order will enter.
DONE and ORDERED this 3rd day of August, 1993.
/s/ William Gordon
WILLIAM GORDON
CIRCUIT JUDGE
cc: Robert Lusk, Esq.
Randy McNeill, Esq.
Maurice Bell, Esq.
Richard Keith, Esq.
Richard Cohen, Esq.
Dean Mooty, Esq.
11. Other examples can be found in Ala. Code § 25-8-1; § 35-6-82,
§ 5-11A-32; §26-2A-75; and § 35-5A-19.
ah a a: ps lai cette
App. 11
CIRCUIT COURT
FIFTEENTH JUDICIAL CIRCUIT
CASE NO. CC-93-604-G
STATE OF ALABAMA,
\
Plaintiff,
v. ORDER
SUSAN AMELIA WOODARD,
Defendant.
/
Susan Woodard (Woodard) has filed a motion to post-
pone the trial so that she can seek appellate review of this
Court’s order which denied her motion to dismiss the
indictment. The State objects to a postponement for
numerous reasons, among them that a petition for writ of
mandamus has not been filed. The Court finds that the
trial should be postponed for the reasons stated below.
In the court’s prior order, it recited the bare facts set
out in the indictment against Woodard. The Court takes
this opportunity to enlarge its statement of the facts, and
notes that this summation is taken from Woodard’s state-
ment and the report of the medical examiner, James R.
Lauridson, M. D.'
1. Woodard strongly contests the accuracy of her statement because
she says she misunderstood the questions and her answers conflict in
many respects. The Court has summarized the facts in a manner most
favorable to the State.
EXHIBIT “B”
App. 12
Woodard was a licensed day care mother and she had
been caring for Elizabeth Dowe Franklin (Dowe) since July
or August of 1992. The events which form the basis of the
State’s case against her occurred during the period from
December 29, 1992 through January 6, 1993, the date
Dowe died.
On December 29, 1992 Dowe was being cared for in
Woodard’s home. Dowe and Woodard’s child were in the
iaundry room and Dowe apparently fell. In an aggravated
state, Woodard jerked Dowe up from the laundry room
floor and Dowe’s head popped back and bounced off the
wooden floor. Woodard then sort of pushed Dowe down and
her head hit the Floor again. Woodard then snatched Dowe
up by both arms and she thinks that the child’s head hit
the floor a third time. Woodard realized that she had hurt
Dowe, but the child was not unconscious and “didn’t never
really cry.” Dowe was “like maybe she had her senses
knocked crazy for a minute.” Woodard then “threw her in a
playpen so her head went back again. After this the child
was groggy but ate spaghetti and took a nap.
That evening Dowe’s mother, Dale Franklin, called
Woodard and asked if Dowe had fallen that day because
she was throwing up and had a knot on her head.
Woodard did not tell Mrs. Franklin about the incident at
her house.
On January 6, 1993 Dowe was brought to Woodard’s
house and she was groggy and sleepy. Dowe was placed in
the playpen and at some point Woodard noticed that Dowe
had thrown up and appeared to be unconscious. Woodard
shook Dowe causing her head to bob three or four good
times. At some point Woodard thought that, perhaps, the
shaking broke Dowe’s neck. The paramedics were eventu-
ally called and Dowe was taken to the hospital were she
later died.
The forensic examiner’s report shows, among other
things, that the child had bruises on her right and left
upper arms, and Dr. Lauridson is of the opinion that death
App. 13
was “as a result of complications of a closed head injury
resulting in subdural hematoma and cerebral edema”.
The above-recited facts are intended to be included in
the statement of facts, in this Court prior order.
Woodard’s counsel] represent that they will file a peti-
tion for writ of mandamus no later than the close of busi-
ness on August 13, 1993. At the hearing counsel
represented that the main thrust of its argument will be
that predicating the capital offense of the death of a child
under fourteen was an arbitrary and capricious legislative
act and violative of the federal and state constitutions. In
Woodard’s motion to dismiss the indictment, Woodard also
suggested, but did not argue, that the statute was uncon-
stitutional as applied in the facts of this case.
As noted in the Court’s prior order, 1992 Ala. Acts 601
added three new capital offenses to the Alabama Death
Act. There is a suggestion, but no proof, that these new
capital offenses were enacted to address the problem of
“drive-by shootings”. The attack on the section at issue,
Ala. Code Section 13A-5-40(aX150, presents a question of
first impression in this state. The Court recognizes the
grounds for the State’s objection to Woodard’s motion. In
addition, the Court, as does the State, also recognizes that
no party wishes to try this case twice in the event Section
13A-5-40(aX15) is ultimately found to violate the state of
federal constitutions.
The Court is confident in the correctness of its order
denying Woodard’s motion to dismiss the indictment in
this case; however, under the circumstances this Court
also believes that Woodard should have the opportunity to
seek appellate review before the case is tried. The Court
recognizes that the appellate court may decline to review
this matter.
For the foregoing reasons, it is ORDERED that the
trial of this case is postponed if woodard’s counsel files a
petition for writ of mandamus before the close of business
on August 13, 1993.
App. 14
DONE and ORDERED on the 12th day of August,
1993.
/s/ William Gordon
WILLIAM GORDON
CIRCUIT JUDGE
cc: Robert Lusk, Esq.
Randy McNeill, Esq.
Maurice Bell, Esq.
Richard Keith, Esq.
Richard Cohen, Esq.
Dean Mooty, Esq.
App. 15
THE STATE OF ALABAMA - - - JUDICIAL DEPARTMENT
THE ALABAMA COURT OF CRIMINAL APPEALS
OCTOBER TERM, 1992-93
CR 92-1868
Ex parte: Susan Amelia Woodard
(In re: State of Alabama vs. Susan Amelia Woodard)
Montgomery Circuit Court No. CC-93-604
PETITION FOR WRIT OF MANDAMUS
BOWEN, PRESIDING JUDGE
This a petition for writ of mandamus challenging the
constitutionality of the capital offense defined in Ala. Code
1975, Section 13A-5-40(aX 15), which we term “child-murder.”
The petitioner, 37-year-old Susan Amelia Woodard
was indicted for the capital murder of a 15-month-old
Elizabeth B. Dowe Franklin. The events that form the
basis of the State’s case occurred on December 29, 1992,
and January 6, 1993. On these two dates, the infant was
under the care of petitioner, a licensed day care person,
who allegedly shook the infant and allegedly caused the
infant to hit her head on the floor. The infant died on
January 6, 1993, “‘as a result of complications of a closed
head injury resulting in subdural hematoma and cerebral
edema.’” Order of the circuit court, August 12, 1993, p. 3.
EXHIBIT “C”
App. 16
On April 28, 1993, the petitioner, moved to dismiss
the indictment arguing that the statute on which the
indictment was based, Ala. Code 1975, Section 13A-5-
40(aX15), was unconstitutional. On July 2, 1993, the trial
court held a hearing on the matter. On August 3, 3993, the
trial court issued a written order denying the motion to
dismiss and upholding the constitutionality of the statute.
That order was supplemented by a second order dated
August 12, 19932, in which the trial judge set out the
State’s factual allegations and postponed the trial of the
case to allow the petitioner the opportunity to seek appel-
late review of the denial of the motion to dismiss the
indictment.
This Court is well aware that “[pletitions for writ of
mandamus cannot be substituted for appeals to review
adverse legal rulings of lower courts.” Because the peti-
tioner could ultimately challenge on direct appeal from any
conviction the trial court’s denial of her motion to dismiss,
that matter is not properly reviewable by petition for writ
of mandamus. See Ex parte Fowler, 574 So.2d 745, 747
(Ala. 1990). “‘This for the reason, that appellate courts will
not hear causes in piecemeal.’” Jd. (quoting Koonce v,
Arnold, 244 Ala. 513, 514, 14 So.2d 512, 515 (1943)).
Nevertheless, in the interests of judicial economy and
under the authority granted this Court by Section 12-3-11,
we deem it appropriate to address the merits of this peti-
tion. See Ex parte Jackson, 614 So.2d 408 (Ala. 1993)
(reviewing on petition for writ of mandamus trial court’s
denial of defendant’s motion to dismiss).
Act No. 92-601, 1992 Ala. Acts 1247, amended
Alabama’s criminal code Section 13A-5-40 to include as a
capital offense “[m]urder when the victim is less than four-
teen years of age.” Ala. Code 1975, Section 13A-5-40(aX15).
As this Court understands the petitioner’s arguments, the
petitioner contends that this child-murder provision is
unconstitutional because 1) it is arbitrary, overbroad, and
discriminatory in that it predicates the capital offense
solely on the age of the victim; 2) the subsection is vague
App. 17
and fails to sufficiently narrow the class of people which
may become “death eligible”; and 3) the subsection “is con-
tradictory and in diametric opposition to the legislative
intent which underlies the purpose of the statute as a
whole” because the subsection does not include as an ele-
ment of the offense at least one of the aggravating factor
listed in Section 13A-5-49. (Petition for writ of mandamus
at 8). We reject each of these arguments.
I
Section 13 A-5-40(aX15), the child-murder provision of
Alabama’s capital offense statutes is not unconstitutionally
overbroad.
““The overbreadth doctrine derives from the
First Amendment, See Young v. American Mini
Theaters, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed. 2d
310 (1976); Parker v, Levy, 417 U.S. 733, 94 S.Ct.
2547, 41 L.Ed.2d 439 (1974), and serves to invali-
date legislation so sweeping that, along with its
allowable proscriptions, it also restricts constitu-
tionally-protected rights of free speech, press, or
assembly, see e.g., Coates v, Cincinnati, 402 U.S.
611, 91 S.Ct. 1686, 29 L.Ed.2d 214 (1971). Since
there are no First Amendment rights at stake
here, the overbreadth doctrine does not apply.
See Vj —
, 455 U.S. 489, 497 n. 9,
102 S.Ct. 1186, 1192 n. 9, 71 L.Ed.2d 362 ( 1982).
McCall v, State, 565 So.2d 1163, 1165 (Ala.Cr.App. 1990).
“The doctrine of overbreadth recognizes that a
state legislature may have a legitimate and sub-
stantial interest in regulating particular behav-
ior, but ‘that purpose cannot be pursued by
means that broadly stifle fundamental personal
liberties when the end can be more narrowly
achieved.’ Shelton v. Tucker, 364 U.S. 479,488...
App. 18
(1960). Historically, the overbreadth doctrine has
been used by the federal courts to prevent a chill-
ing effect on First Amendment freedoms. Note,
The First Amendment Overbreadth Doctrine, 83
Harv. L. Rev. 844, 852 (1970). . . . However, the
overbreadth doctrine under ‘the Alabama
Constitution has been applied in due process cases
not bette a a ae shortens See
of Ensitiaartal Micaneatans 437 So. 2d 82
(Ala. 1983).
“Justice Adams, for the full Court in RossNeely
Express, wrote:
“‘The right to due process is guaranteed to
the citizens of Alabama under the Alabama
Constitution of 1901, Article 1, Sections 6
and 13. This constitutional right to due
process applies in civil actions as well as
criminal proceedings. Pike v. Southern Bell
Telephone and Telegraph Co., 263 Ala. 59, 81
So.2d 254 (1955). The Courts have found
that this right is violated when a statute or
regulation is unduly vague, unreasonable or
overbroad ....’
“In reviewing a regulation of a county
Board or Health, this court held that the
central issue was reasonableness. Baldwin
County Board of Health v. Baldwin County
Electric Membership Corporation, 355 So.2d
708 (Ala. 1978. In City of Russellville v.
Vulcan Materials Co., 382 So.2d 525 (Ala.
1980), this court said:
“*“The validity of a police power regu-
lation . . . under that the existing circum-
stances, the regulation is reasonable,
and whether it is really designed to
App. 19
accomplish a purpose properly falling
within the scope of the police power.
i irmi , 292
Ala. 684, 299 So.2d 282 (1974).
Otherwise expressed, the police power
may not be employed to prevent evils of
a remote or highly problematical char-
acter. Nor may its exercise be justified
when the restraint imposed upon the
exercise of a private right is dispropor-
tionate to the amount of evil that will
be corrected. Bolin v, State, 266 Ala.
256, 96 So.2d 582, conformed to in 39
Ala.App. 161, 96 So.2d 592 (1957).”’
“Statutes and regulations are void for
overbreadth if their object is achieved by
means which sweep unnecessarily broadly
and thereby invade the area of protected
freedoms. See Zwickler v, Koota, 389 U.S.
241, 88 S.Ct. 391, 19 L.Ed. 2d 444 (1967);
ishi , 385 U.S.
389, 87 S.Ct. 675, 17 L.Ed. 2d 629 (1967).’
“437 So.2d at 84-85.”
Friday v. Ethanol Corp,, 539 So.2d 208, 315-216 (Ala.
1988).
We find that Ala. Code 1975, Section 13A-5-40(aX 15),
is reasonable and invades no area of protected freedoms.
The only act forbidden by that subsection is an intentional
killing — a murder. The appellant has no right to murder
a 15-month-old child. Murder is not a constitutionally pro-
tected activity.
“[A] physical assault is not by any stretch of the
imagination expressive conduct protected by the
First Amendment. See
Jaycees, 468 U.S. 609, 628, 104 S.Ct. 3244, 3255,
App. 20
82 L.Ed.2d 462 (1984) {V]iolence or other types of
potentially expressive activities that produce spe-
cial harms distinct from their communicative
impact .. . are entitled to no constitutional pro-
tection’); NAACP vy, Claiborne Hardware Co,, 458
U.S. 886, 916, 102 S.Ct. 3409, 3427, 73 L.Ed.2d
1215 (1982) (‘The First Amendment does not pro-
tect violence’).”
Wisconsin vy. Mitchell, 508 U.S. __, 113 S.Ct. 2194, 2199,
124 L.Ed.2d 436, 444-45 (1993).
II
Section 13A-5-40(a)(15) is not unconstitutionally
vague.
“‘The doctrine of vagueness, ... originates
in the due process clause of the Fourteenth
Amendment, see Lanzetta v. New Jersey,
306 U. S. 451, 59 S.Ct. 618, 83 L.Ed. 888
(1939), and is the basis for striking down
legislation which contains insufficient warn-
ing of what conduct is unlawful, see United
Stat National Dairy Prod 0 :
tion, 372 U.S. 29, 83 S.Ct. 594, 9 L.Ed.2d
561 (1963).
“Void for vagueness simply means that
criminal responsibility should not attach
where one could not reasonably understand
that his contemplated conduct is proscribed.
United States v. Harriss, 347 U.S. 612, 617,
74 S.Ct. 808, 811, 98 L.Ed. 989, 996 (1954).
A vague statute does not give adequate
“notice of the required conduct to one who
would avoid its penalties,” Boyce Motor
Lines v. United States, 342 U.S. 337, 340, 72
S.Ct. 329, 330, 96 L.Ed. 367, 371 (1951), is
not “sufficiently focused to forewarn of both
App. 21
its reach and coverage,” United States y.
ion, 372
U.S. at 33, 83 S.Ct. at 598, 9 L.Ed.2d at 566,
and “may trap the innocent by not providing
fair warning,” ,
408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33
L.Ed.2d 222, 227-28 (1972).
“‘As the United States Supreme Court
observed in Wj , 333 U.S.
507, 68 S.Ct. 665, 92 L.Ed. 849 (1948):
“*“There must be ascertainable stan-
dards of guilt. Men of common intelli-
gence cannot be required to guess at the
meaning of the enactment. The vague-
ness may be from uncertainty in regard
to persons within the scope of the act, or
in regard to the applicable tests to
ascertain guilt.”’
“*333 U.S. at 515-16, 68 S.Ct. at 670, 92
L.Ed.2d [at] 849-50 (citations omitted].’
“McCrary vy, State, 429 So.2d 1121, 1123-24
(Ala.Cr.App. 1982), cert. denied, 464 U.S. 913,
104 S.Ct. 273, 78 L.Ed.2d 254 (1983).”
McCall v. State, 565 So.2d 1163, 1165 (Ala.Cr.App. 1990).
“It is well settled that, in order to pass consti-
tutional muster, a penal statute must ‘define the
criminal offense with sufficient definiteness that
ordinary people can understand what conduct is
prohibited and in a manner that does not encour-
age arbitrary and discriminatory enforcement.’
» 461 U.S. 352, 357, 103 U.S.
1855, 1858, 75 L.Ed.2d 903 (1983) (citations
omitted).
App. 22
““Due process requires that all “be informed
as to what the State commands or forbids.”
Lanzetta v. New Jersey, 306 U.S. 451, 453,
59 S.Ct. 618, 619, 83 L.Ed. 888 (1939), and
that “men of common intelligence” not be
forced to guess at the meaning of the crimi-
nal law. Connally v. General Construction,
269 U.S. 385, 391, 46 S.Ct. 126, 127, 70
L.Ed. 322 (1926).
‘Smith v. Goguen, 415 U.S. 566, 574, 94, S.Ct.
1242, 1248, 39 L.Ed.2d 605 (1974).”
Senf yv. State, [Ms. CR 91-1207, February 12, 1993] __
So.2d (Ala.Cr.App. 1993). Here, Section 13A-5-
4Q(aX15) provides fair warning of what is forbidden. See
Rose v, Locke, 423 U.S. 48, 96 S.Ct. 243, 46 L.Ed.2d 185
(1975). Clearly, this section informs ordinary people of the
prohibited conduct. See Wright v. State, 599 So.2d 637, 638
(Ala.Cr.App.), cert. denied, 609 So.2d 452 (Ala. 1992).
Furthermore, the petitioner has no legitimate ground
to complain that Section 13A-5-40(aX15) is unclear as to
her conduct. “Vagueness challenges to statutes which do
not involve First Amendment freedoms must be examined
in light of the facts of the case at hand.” Jordan v. State,
411 So.2d 816, 818 (Ala.Cr.App. 1981).
[Blecause ‘[t]he essential purpose of the “void for
vagueness” doctrine is to warn individuals or the
criminal consequences of their conduct,’ Jordan v.
De George, 341 U.S. 223, 230, 71 S.Ct. 703, 707,
95 L.Ed. 886 (1951), ‘loJne to whose conduct a
statute clearly applies may not successfully chal-
lenge it for vagueness,’ Parker v. Levy, 417 U.S.
733, 756, 94 S.Ct. 2547, 2562, 41 L.Ed.2d 439
(1974), ‘even though the statute may well be
vague as applied to others,’ Aiello v. City of
Wilmington, 623 F.2d 845, 850 (3d Cir. 1980).
Therefore, a defendant who challenges a statute
App. 23
on the grounds of vagueness ‘must demonstrate
that the statute under attack is vague as applied
to his own conduct, regardless of the potentially
vague applications to others.’ Aiello, 623 F.2d at
850 (emphasis added). Accord Rode vy,
Dellarciprete, 845 F.2d 1195, 1199-1200 (3d Cir.
1988).”
Senf, ___ So.2d at __ (footnote omitted). The petitioner
has failed to meet that burden.
Ill
The petitioner claims that the Section 13A-5-40)aX 15)
is unconstitutional because it is arbitrary and because the
subsection fails to sufficiently narrow the class of people
that may become “death eligible.” We reject these con-
tentions.
“A capital sentencing scheme must, in short, pro-
vide a ‘“meaningful basis for distinguishing the
few cases in which [the death penalty] is imposed
from the many cases in which it is not.”’ [Gregg v.
Georgia, 428 U.S. 153, 188, 96 S.Ct. 2909, 2932,
49 L.Ed.2d 859 (1976)], quoting Furman v.
Georgia, [408 U.S. 238, 313, 92 S.Ct. 2726, 2763,
33 L.Ed.2d 346 (1972)] (White, J., concurring).
“This means that if a State wishes to authorize
capital punishment it has a constitutional
responsibility to tailor and apply its law in a
manner that avoids the arbitrary and capricious
infliction of the death penalty.”
, 446 U.S. 420, 426-428, 100 S.Ct. 1759,
1764, 64 L.Ed.2d 398, 406 (1980).
Alabama’s capital offense statutes include a sentenc-
ing scheme that is neither arbitrary nor capricious. Ex
parte Hays, 518 So.2d 768, 774 (Ala. 1986); Daniels v.
State, 534 So.2d 638, 642-45 (Ala.Cr.App. 1985), aff’d 534
App. 24
So.2d 656 (Ala. 1986), cert. denied, 479 U.S. 1040, 197
S.Ct. 898, 93 L.Ed.2d 850 (1987).
“The Supreme Court has required heightened
reliability in the imposition of the death penalty,
but the Court has not mandated any particular
state statutory approach to capital punishment.
To minimize the risk of arbitrary action and pro-
vide individualized sentencing, however, the
Court has imposed two general requirements of
the capital sentencing process. First, a state must
channel the sentencer’s discretion in order to
‘genuinely narrow the class of persons eligible for
the death penalty and .. . [thus] reasonably jus-
tify the imposition of a more severe sentence on
the defendant compared to others found guilty of
murder.’ Second, the State may not limit the sen-
tencer’s consideration of any relevant evidence
that might lead the sentencer to decline to evi-
dence that might lead the sentencer to decline to
impose the death penalty.
“The required narrowing of the class of death-
eligible defendants may occur at either the guilt
or the sentencing phase of a capital trial. When
narrowing is accomplished during the sentencing
phase, the sentencer determines whether certain
characteristics of the crime, known as aggravat-
ing circumstances, distinguish the gravity of the
offense so as to justify the imposition of the death
penalty.”
Daniel F. McInnis et al., Project, Twenty-Second Annual
Revi Criminal P Seek: Sinitedl Sthine fi :
Court and Courts of Appeals 1991-1992, 81 Geo.L.J. 853,
1471-73 (1993) (footnotes omitted).
The required narrowing of the class of death-eligible
defendants accused of violating Section 13A-5-40(a)(15)
occurs at the sentencing phase of the capital trial when the
App. 25
sentencer must determine the existence of at least one of
the aggravating circumstances listed in Section 13A-5-49.
See Sections 13A-5-46(e); 13A-5-47(d) and (e).
Furthermore, ‘(t]he statutory aggravating circumstances
may not be added to or expanded.” Nelson v, State, 405
So.2d 392, 400 (Ala.Cr.App. 1980) reversed on other
grounds, 405 So.2d 401 (Ala. 1981).
In order for a defendant to be sentenced to death upon
a conviction under Section 13A-5-40(aX15), the defendant
must be guilty of the intentional murder of a child under
the age of 14 years and the sentencer must find the exis-
tence of at least one of the aggravating circumstances enu-
merated in Section 13A-5-49, thereby narrowing the class
of “death eligible” defendants.
IV
The petitioner asserts that Section 13A-5-40(aX 15) is
unconstitutional because it “is contradictory and in dia-
metric opposition to the legislative intent which underlies
the purpose of the statute as a whole.” The gist of her
argument is that a capital offense defined in Section 13A-
5-40 must include as an element at least one of the aggra-
vating circumstances set forth in Section 13A-5-49. This
argument is without merit.
Under our current statutory scheme, a “capital
offense” is “[aJn offense for which a defendant shall be pun-
ished by a sentence of death ife j j
parole according to the provisions of . . . [Alrticle [2 of
Chapter 5 of Title 13A].” Section 13A-5-39(10) (emphasis
added). The specific forms of conduct that the legislature
has declared to be “capital offenses” are set forth in Section
13A-5-40 (Supp. 1993). Each of these offenses consists of
an intentional murder coupled with some other element,
e.g., that the murder was committed during the commis-
sion of certain other felonies (kidnapping, robbery, rape,
sodomy, burglary, sexual abuse, and arson), Section 13A-5-
App. 26
40(aX1), (2), (3), (4), (8), and (9); that the murder was com-
mitted for pecuniary gain, Section 13A-5-40(7); and that
the victim was a law enforcement officer, Section 13A-5-
40(5). Although this other element” is sometimes referred
to as an “aggravating circumstance,” Kuenzel v. State, 577
So.2d 474, 490 (Ala. Cr.app. 1990), affirmed, 577 So.2d 531
(Ala.), cert. denies ____—s—*U.S. __, 112 S.Ct. 242 (1991),
Crow vy. State, 485 So.2d 351, 367 (Ala.Cr.App. 1984),
reversed on other grounds, 485 So.2d 373 (Ala. 1985), cert.
denied, 477 U.S. 909 (1986), the Section 13A-5-40 “other
element” should not be confused with the statutory aggra-
vating circumstances set out in Section 13A-5-49.
A number, but not all, of the Section 13A-5-40 capital
offenses include as “other elements” conduct that clearly
corresponds to one or more of the aggravating circum-
stances specified in Section 13A-5-49. For example, the
capital offense of intentional murder during a rape,
Section 13A-5-40(1)(3), intentional murder during a rob-
bery, Section 13A-5-40(aX2), intentional murder during a
burglary, Section 13A-5-40(a)(4), and intentional murder
during a kidnapping, Section 13A-5-40(a)(1), parallel the
aggravating circumstance that “[t}he capital offense was
committed while the defendant was engaged... [in a]
rape, robbery, burglary or kidnapping,” Section 13A-5-
49(4). However, other capital offenses, such as intentional
murder during a sodomy, Section 13A-5-40(a)(3), inten-
tional murder during sexual abuse, Section 13A-5-4(aX8),
the intentional murder of two or more persons by one act
or course of conduct, Section 13A-5-40(a) (10), and the
offense of which the petitioner is accused, the intentional
murder of a child, Section 13A-5-40(aX 15), do not parallel
any aggravating circumstance enumerated in Section 13A-
5-49. See Ex parte Kyzer, 399 So.2d 330, 334 (Ala. 1981)
(recognizing as “an anomaly” in the former capital offense
statutes that “there [wa]s a corresponding aggravating cir-
cumstance for most, but not all, of the aggravated
offenses”).
a ee«©,
App. 27
The fact that Section 13A-5-40(aX15) does not parallel
a statutory aggravating circumstance does not render that
Section “contradictory and in diametric opposition to the
legislative intent which underlies the purpose of the
statute as a whole.” To the contrary, the legislature has
clearly classified certain crimes as “capital offenses,”
Section 13A-5-40, and it has set the minimum punishment
for such crimes as imprisonment of life without parole, see
Sections 13A-5-45(f); 13A-5-46(3\1). This is no different
from the legislature’s classifying other offenses for pur-
poses of punishment and establishing minimum and maxi-
mum punishments for each classification. See Sections
13A-5-3; 13A-5-6; 13A-5-7. A greater punishment — death
— may be imposed on a defendant convicted of a capital
offense, but only if one or more of the aggravating circum-
stances enumerated in Section 13A-5-49 is found to exist
and that aggravating circumstance(s) outweighs any miti-
gating circumstance(s) that may exist. See Sections 13A-5-
45(f); 13A-5-46(e); 13A-5-47(3). Cf. Ex parte Kyzer, 399
So.2d at 334 (under former capital offense statutes, death
sentence could not be upheld where defendant was con-
victed of the intentional murder of three persons in one
course of conduct, but no statutory aggravating circum-
stances existed); Holladay v. State, 549 So.2d 122, 133
(Ala.Cr.App. 1988) (death sentence upheld where defen-
dant was convicted of the intentional murder of three per-
sons in one course of conduct and two Section 13A-5-49
aggravating circumstances existed), affirmed, 549 So.2d
135 (Ala.), cert. denied, 493 U.S. 1012 (1989).
From the foregoing, it is clear that the petitioner is
incorrect in her assertion that a defendant convicted of the
capital offense of child murder is “death eligible” based
solely on the age of the victim. As the trial court stated:
“When no aggravating circumstance mirrors the capital
offense, the defendant does not become death eligible until
the State proves an aggravating circumstance in the pun-
ishment phase.” Order of the circuit court, August 3, 1993,
at 6 n.6.
App. 28
V
Finally, we reject the petitioner’s argument that
Section 13A-5-40(a\(15) is arbitrary. In this regard, in its
order of August 3, 1993, the trial court found:
“Neither Johnson' nor Woodard have cited the
Court to any authority which held a death pun-
ishment statute unconstitutional because the
statute defines the capital offense based on the
age of the victim or because the statute consid-
ered the age of the victim as an aggravating fac-
tor. The authority appears to be to the contrary.
People v. Odle [538 N.E.2d 428, 440-41 (Ill. 1988),
cert. denied, __ U.S. __, 110 S.Ct. 3289 (1990)
[court upheld sentence of death where the “death
eligible” factor was that the murdered individual
was under 12 years of age and the death resulted
from exceptionally brutal or heinous behavior
indicative of wanton cruelty]. There are decisions
of the United States Supreme Court which uti-
lized a proportionality analysis to find that a par-
ticular offense does not justify the death penalty,
e. g. Enmund vy, Florida, 458 U.S. 782 (1982) (the
death penalty is unconstitutional where the
defendant is convicted of a felony murder), Coker
vy. Georgia, 433 U.S. 584 (1977) (the death
penalty is constitutionally excessive punishment
for rape). However, when, in the opinion of the
legislature, a class of victims require special pro-
tection and the statutory scheme provides a
meaningful method of narrowing the class of
1. James Johnson, Jr., and Susan Amelia Woodard (the petitioner),
were separately indicted for capital offenses under Ala. Code 1975, sec-
tion 13A-5-40(a) (15). Each offense is separate and involves a different
victim. Each defendant filed a motion to dismiss the indictment, chal-
lenging the constitutionity of Section 13A-5-40(aX 15). The circuit court
consolidated the cases “for the singular purpose of ruling on these
motions.” Order of the circuit court, August 3, 1993, at 1.
App. 29
defendants who are death eligible, the statute is
not constitutionally infirm.
“The age criteria in the Act has a historical
basis in Alabama law. At common law a child
over 7 but less than 14 was presumed to-be inca-
pable of committing a felonious criminal offense.
» 95 So. 1018 (Ala.Cr.App. 1911).
This presumption was rebuttable. Section 13A-3-
3 changed the common law, and it provides that
no person under 14 can be prosecuted for a crimi-
nal offense. Historically, the rationale given for
this rule was that the child lacked sufficient dis-
cretion to appreciate the criminality of his con-
duct, Hampton; or that the child did not possess
sufficient mental capacity or lacked the requisite
guilty knowledge of the wrongfulness or wicked-
ness of the act charged, Key v, State, 58 So. 946
(Ala.Ct.App. 1912); or the child could not be com-
prehend the wrongfulness of his guilty act,
, 67 So. 783 (Ala.Ct.App. 1914).
“The recognition of 14 as a level of maturity
sufficient to shift responsibility to a child for his
acts is reflected in other areas of Alabama law.
Section 15-16-2 provides that every person over
14 is presumed, in terms of their mental state, to
be responsible for their acts. Section 26-2A-76
provides that a minor 14 or older may nominate a
guardian, and Section 16-2A-72 provides that a
minor 14 or older may prevent the appointment
of a particular guardian. Section 12-15-34 pro-
vides that the juvenile court can transfer a case
to the circuit court for prosecution only when the
child is over 14 years of age.
“The Court concludes that inasmuch as the leg-
islature has concluded as a matter of public pol-
icy that children over 14 are mature enough to be
responsible for their acts, the converse is likewise
sensei
App. 30
true, i.e., that children under 14 require special
protection. Therefore, the legislatures’ policy
decision to select 14 as a component of the capital
offense is neither arbitrary nor capricious.”
Order of circuit court, August 3, 1993 at 9-11 (footnotes
omitted).
As noted by the Attorney General in its answers to
the petition, the Alabama Legislature in other subsections
of Section 13a-5-40, has seen fit to provide the death
penalty for the intentional killing of a member of certain
classes of persons, including a police officer or other speci-
fied law enforcement officers (subsection (a)95)), a public
official (subsection (a)(11)), and a witness (subsection
(aX14)). The “cop killing” capital murder provision was
upheld in Ex parte Harrell 470 So.2d 1309 (Ala.), cert.
denied, 474 U.S. 935, 106 S.Ct. 269, 88 L.Ed.2d 276 (1985).
In the Alabama Criminal Code alone, the Alabama
Legislature has repeatedly recognized that children are
entitled to certain protections not afforded adults. See
Section 13A-3-3 (“The prosecution of any person as an
adult shall be barred if the offense was committed when
the actor was less than 14 years old.”); Section 13A-6-45
(interference with custody); Section 13A-6-61(aX3) (rape in
the first degree); Section 13A-6-62(aX1) (rape in the second
degree); Section 13A-6-63(a)(3) (sodomy in the first
degree); Section 13A-6-66 (aX3) (sexual abuse in the first
degree); Section 13A-6-67(a)\(2) (sexual abuse in the second
degree); Section 13A-6-69 (enticing child to enter vehicle,
house, etc., for immoral purposes); Section 13A-6-70(c)(1)
(providing that a person is deemed incapable of consent to
certain sexual offenses if that person is less than 16 years
old); Section 13a-11-76 (prohibiting the delivery of a pistol
to a minor); Section 13A-12-111(aX2) (promoting prostitu-
tion in the first degree); Section 13A-12-191 (Prohibiting
the dissemination of public display of obscene matter con-
taining visual reproduction of persons under 17 years of
age involved in obscene acts); Section 13A-12-192 (pro-
App. 31
; (prohibiting parents or guardians from per-
mitting children to engage in production of obscene mat-
ters); Section 13A-12-197 (Prohibiting the production of
obscene matter depicting persons under 17 years of age
involved in obscene acts); Section 13A-13-3 (Incest);
Section 13A-13-4 (nonsupport); Section 13A-13-5 (abandon-
ment of a child); Section 13A-13-6 (endangering the wel-
fare of a child); Section 13A-12-200.1(16) (defining the
term “harmful to minors” in connection with Alabama’s
Anti-Obscenity Enforcement Act); Section 13A-12-200.5
(Prohibiting the distribution of material harmful to
minors); Section 13a-12-215 (Prohibiting the sale, furnish-
ing, etc., of controlled substances by persons over age 18 to
persons under age 18); and Section 13a-12-250 (providing
for an additional penalty for the unlawful sale of a con-
trolled substance on or near school campus).
The child-murder provision is not arbitrary and does
not violate any equal protection right.
“The Equal Protection Clause of the Fourteenth
Amendment goes no further than to prohibit
invidious discrimination. . . . If there is some rea-
sonable basis for the recognition of separate
classes, and if the disparate treatment of the
classes has a rational relation to the object sought
to be achieved by the lawmakers, the
Constitution is not offended. The transgression
arises only when the classification rests upon
grounds wholly irrelevant to achievement of the
State’s objective; the separate treatment must
admit of but one conclusion beyond a rational
doubt, i.e., that the basis therefore is arbitrary
and unreasonable and without relevance to the
legislative goal.’”
Goodson v, State, 588 So.2d 509, 514 (Ala.Cr.App. 1991)
(quoting State v, Thompson, 133 N.J.Super 189, 336 A.2d
App. 32
11, 14 (1975)). “‘Because the statute does not proscribe
activities that are legally protected and does not involve
any legally cognizable “suspect” class, “the classification
must be upheld if ‘any state of facts rationally justifying it
is demonstrated to or perceived by the court.’” United
States v. Holland, 810 F.2d 1215, 1219 (D.C.Cir.), cert.
denied, 481 U.S. 1057, 107 S.Ct. 2199, 95 L.Ed.2d 854
(1987).’” Hardy v. State, 576 So.2d 685, 686 (Ala.Cr.App.
1991) (“‘The legislature of alabama “wanted to lessen the
risk that drugs would be readily available to school chil-
dren. It is surely rational to achieve that goal by increas-
ing penalties for those who sell drugs near schools,”’”).
Here, the classification adopted by the Legislature of child-
murder as a capital offense is not arbitrary and capricious,
but reasonable and appropriate.
Based upon all of these considerations, we hold that
Section 13A-5-40(aX15) is not arbitrary. See generally Plitt
y. Griggs, 585 So.2d 1317, 1324 (Ala. 1991).
It is the holding of this Court that Ala. Code 1975,
Section 13A-5-40(aX15) is not unconstitutional. The peti-
tion for writ of mandamus is denied.
PETITION DENIED.
All Judges concur.
i a rn ee
App. 33
THE STATE OF ALABAMA - - - JUDICIAL DEPARTMENT
THE ALABAMA COURT OF CRIMINAL APPEALS
92-1868
Ex parte: Susan Amelia Woodard
(In re: State of Alabama vs. Susan Amelia Woodard)
Petition for Writ of Mandamus
Montgomery Circuit Court No. CC93-604-G
ORDER
It is ORDERED that the application for rehearing
filed in the above cause be and the same is hereby over-
ruled.
It is further ORDERED that the request for addi-
tional facts pursuant to Rule 39(k) of the Alabama Rules of
Appellate Procedure be and the same is hereby denied.
WITNESS, this the 30th day of September, 1993.
/s/ Lane W. Mann
LANE W. MANN, CLERK
COURT OF CRIMINAL APPEALS
cc: Judge William Gordon
Ms. Debra Hackett, Circuit Clerk
Maurice Bell, Esq.
Richard Keith, Esq.
Ellen Brooks, Esq., District Attorney
Joseph G. L. Marston, III, Assistant Attorney General
cca\wki
EXHIBIT “D”
App. 34
IN THE SUPREME COURT OF ALABAMA
February 4, 1994
1930078
Ex parte Susan Amelia Woodard. PETITION FOR WRIT
OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS (In re: Susan Amelia Woodard v. State) (92-
1868) (Montgomery: CC-93-604)
CERTIFICATE OF JUDGMENT
Writ Denied
The above cause having been duly submitted, IT IS
CONSIDERED AND ORDERED that the petition for writ
of certiorari is denied.
COSTS TAXED TO PETITIONER.
ALMON, J.- Hornsby, CJ., Shores, Houston,
Steagall, Kennedy, Ingram and Cook,
JJ., concur.
I, Robert G. Esdale, as Clerk of the
Suprem* Court of Alabama, do hereby
certify ..at the foregoing is a full, true
and correct copy of the instrument(s)
herewith set out as same appears(s) of
record in said Court.
Witness my hand this 4th day of Feb..,
1994.
/s/ ROBERT G. ESDALE
Clerk, Supreme Court of Alabama
EXHIBIT “E”
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.