Brief and Argument of Respondentm — Hamilton v. Alabama

hee tae Oftice-Surreme Court, U.S.

‘ dais FILED

OCT¢ 1961

SURES & BRTYITING, Cler

In the

Supreme Court of the United States

October Term, 1961

No. 32

CHARLES CLARENCE HAMILTON,

Petitioner,

versus

STATE OF ALABAMA

Respondent.

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

BRIEF AND ARGUMENT OF RESPONDENT

MacDonald Gallion

Atterney General

State of Alabama

(ieorge D. Mentz

Assistant Attorney General

State of Alabama

State Capitol

Montgomery 4, Alabama

Counsel for Respondent

INDEX

Subject Index

Opinions Below _. ........

Jurisdiction

Questions Presented

Statute and Constitutional

Provisions Involved

Statement

A Suaniniiaary of Arguinent

Argument

Conclusion

Certificate

ii

CITATIONS

Cases : Page

Avery v. Alabama, 308 U.S. 444 000 6

Baker yv. State, 209 Ala. 142, 95 So. 467 00. 11

Betts v. Brady, 316 U. 8. 455 8, 8

Brown vy. Mississippi, 297 U.S. 278 00 6

Canizio v. New York, 327 U. &. 82 _....... 2... 8, 9

Council vo Clemmer, C.A.D.C. 1949, 177 F.

Be oc atas cca [On aED SURRY are tt TOON S

Crooker v. California, 357 U.S. 433, 4400000. 6.8

DeMaurez v. Swope, 9 Cir. 1939, 104 F. 2d 758 s

Ex Parte Seals, 271 Ala. 622, 126 So, 2d 474.0000... ks 7

Frank v. Mangum, 237 U. 8. 303 6

Gibbs v. Burke, 3387 U.S. 773 20... 8

Hamilton vy. Alabama, ........ oe a ee

ieee eea es | Sie atl ba rare ce RR =

Hamilton y. State, 270 Ala. 184, 116 So. 2d |

O06, cont. den. 308 U8. OS 6

Johnson v. Williams, 244 Ala. 391, 18 So. 2d

Ths ae me Ae Pees 7

Jones vy. Cochran, Ila. , 12a Ba. 2a 08... ? Ht)

McNeal v. Culver, 365 U.S. JST S.Ct. 4138,

5 L.Ed.2d = Satta tea eae nl a ame CO Stats 9

Madden v. Kentucky, 309 U.S. 83 so 6

Miller v. Texas, 153 U.S. 535 . 6

Powell v. Alabama, 287 U.S. 45 6. 9

Sheppard v. State, 257 Ala. 626, 60 So. 2d 329 11

iii

CITATIONS—( Continued }

Cases:

Speiser v. Randall, 357 U.S. 513

State v. Sullivan, 10 Cir. 1955, 227 F. 2d 511,

certiorari denied Braasch v. State of Utah,

300 U.S. 973 .

United States vy. Stevenson, D.C. D.C. 1959,

170 F. Supp. 315

Uveges v. Pennsylvania, 3385 U.S. 437

Williams v. Kaiser, 3823 U.S. 471

Constitution and Statutes:

Code of Alabama 1940: Title 14, Section 85

Title 15, Section 318

Title 15, Section 423

Constitution of the United States: lFour-

teenth Amendment

United States Code: Title 28, Section 1257

Page

ih

et eg e oe

In the

Supreme Court of the United States

-October Term, 1961

No. 32

CHARLES CLARENCE HAMILTON,

Petitioner,

versus

STATE OF ALABAMA

Respondent. -

ON WRIT OF CERTIORARI TO

THE SUPREME COURT OF ALABAMA

BRIEF AND ARGUMENT OF RESPONDENT

“f I

OPINIONS BELOW

The opinion of the Supreme Court of Alabama denying

petitioner's petition for leave to file an application for writ

of error corn nebis in the trial court is reported at 271

Ala. 88, 122 So. 2d 602, and is printed in R. pp. 27-35. An

earlier opinion of the same court affirming petitioner's judg-

ment of conviction is reported at 270 Ala. 184, 116 So. 2d

906 (See also Appendix A of petitioner's brief, pp- la - 10a),

and this Court's denial of certiorari is reported at 363. U. s.

852.

Il

JURISDICTION

Pursuant to Title 2, United States Code, Section 1257,

petitioner was granted a writ of certiorari by this Court on

January 9, 1961 to review the judgment of the Supreme

Court of Alabama, rendered on August 15, 1960, denying his

petition for leave to file an application for writ of error

coram nobis in the Circuit Court of Jefferson County, Ala-

bama (See “Opinions Below,” supra). Hamilton vr. Alabama,

UV. &......, 81.8. Ct. 388.

Ill

QUESTIONS PRESENTED

1. Whether there is a violation of due process of jaw or

an impingement of fundamental rights by the Alabama Su-

preme Court's denial of a petition for leave te file an appli-

cation for writ of error coram nobis in the trial court when

the petition alleges that the petitioner pleaded not guilty toa

capital crime while not represented by counsel at his ar-

raignment on March 1, 1957, but it makes no showing or

effort to. show that petitioner was prejudiced or disadvan-

taged in any way by such absence of counsel at arraignment,

when the record shows that competent counsel, who was ap-

pointed to represent petitioner on Mareh 4, 1957, stated that

he would not have entered any different plea than the one of

not guilty which had heen entered by petitioner on March

1, 1957, and when the record shows that said counsel actively

represented petitioner at his trial on April 23, 1957.

2. Whether, under the total facts of the case and the

allegations and evidence presented by him to the Supreme

Court of Alabdma in his petition for leave to file an applica-

tion for writ of error coram nobis, this petitioner has estab-

lished the existence of such prejudice or disadvantage by

reason of his having been unassisted by counsel at arraign-

ment when he interposed a plea of not guilty to an indictment

charging him with a capital crime as to warrant this Court's

finding that an ingredient of fundamental unfairness actively

3

operated in the processcthat resulted in his conviction and

death sentence and that, ax a consequence, he was denied

due process of law.

IV

STATUTE AND CONSTITUTIONAL PROVISIONS

INVOLVED

Code of Alabama 1940: Title 14, Section 85

Title 15, Seetion 318

Title 15, Section 42:

Constitution of the United States: Fourteenth Amend-

ment

United States Code: Title 28, Section 1257

7

STATEMENT

The pertinent facts of this case are set out in detail in

the opinions of the Supreme Court of Alabama cited in

“Opinions Below,” supra, but, briefly, they are as follows:

The offense of which petitioner stands convicted occurred

on October 12 or 13, 1956 (R. p. 1; Appendix A, petitioner's

brief, p. 2a); on November 9, 1956 the grand jury of Jeffer-

son County, Alabama, returned a one-count indictment

charging petitioner with the offense of burglary of an in-

habited dwelling in the nighttime with intent to steal (R. pp.

1, 28); on January 4, 1957, while represented by competent

(R. p. 35) court-appointed counsel, Honerable Clell [. May-

field, petitioner was arraigned on that indictment and plead-

ed not guilty (R. pp. 1, 4, 13); on February 12, 1957, a second

indictment, consisting of two counts, was returned against

petitioner, the first count charging burglary of an inhabited

4

dwelling in the nighttime with intent to teal, and the second

count charging burglary of an inhabited dwelling in the

nighttime with intent to ravish. (R. pp. 2.28).

Both the first and second indictments arose out of the same

transaction (R. p. 28), and Mr. Mayfield, who considered

himself as representing petitioner for the second case and was

aware of the fact that a second arraignment would be had ona

day certain (R. pp. 13, 14, 28), did not attend the second ar-

raignment because he wax of the opinion that it was a mere

formality and that his presence would not be necessary since a

plea of not guilty would again be entered (R. p. 13) ; on March

1, 1957, while unattended by any counsel, petitioner was ar-

raigne! upon the second ipdictment and pleaded not guilty

(R. pp. 2, 4. 28); on March 4, 1957, in order that he might

receive his fee for the second case, Mr. Mayfield was again

appointed to represent petitioner (R. pp. 4, 15); on April

23, 1957, while actively represented by Mr. Mayfield (See

record filed with the petition for writ of certiorari, No. 1026

Mise., October Term, 1959), petitioner wax tried by a jury,

wax found guilty of the second count of the second indict-

ment, and was sentenced to suffer death (See record filed

with the petition for writ of certiorari, No. 1026 Mise.,

October Term, 1959); on April 24, 1957 the first indictment

was nolle prossed (R. pp. 1, 4); under the automatic appeal

statute the judgment was reviewed and affirmed by the Su-

preme Court of Alabama, and certiorari was denied by this

Court (See “Opinions Below,” supra).

Subsequenjly, petitioner filed in the Supreme Court of

Alabama a petition for leave to file an application for writ of

errer coram nobis in the Circuit Court of Jefferson County,

Alabama, alleging, inter alia, that he was without counsel on

March 1, 1957 when he was arraigned and pleaded not guilty,

lut said petition contained no showing or effort to show that

he was prejudiced or disadvantaged in any way by the ab-

sence of counsel when he was arrainged and entered his plea

of not guilty (Ro pp. 1-3, 359; the petition for writ of error

coram nobis was denied by the Supreme Court of Ababa

and, upon timely petition therefor, this Court granted a writ

of certiorari to review the state court's judgment (See “Opin-

ions Below.” supray.

VI

SUMMARY OF ARGUMENT

To warrant a state court’s issuance of the extraordinary

writ of error coram nobis, based on an indigent accused's

allegation that he pleaded net guilty te a capital charge

while not represented by counsel at his arraignment, the

petition must make a showing of or at least, proffer evidence

that petitioner, whe shorth: after arraignment and during

his subsequent trial was assisted by competent counsel, suf-

fered substantial prejudice or disadvantage as a result of

the absence of counsel when he entered lis plea.

The total record in this case clearly demonstrates that

petitioner was not se “taken advantage of” as te violate due

process of law.

VII

ARGUMENT

1.

The Supreme Court of Alabama has stated, in effect, that

in petitioner's case there was a violation of Code of Alabama

1940, Title 15, Section 318 (Ro p. 20; petitioner's brief po 3),

providing that the trial court must appoint counsel to rep-

resent an indigent person who is charged with a capital crime.

Had petitioner, on the appeal from the judgment of his con-

viction, been able to attack successfully the trial eourt’s

judgment entry which, as was subsequently developed by

competent evidence, incorrectly stated that he was repre-

sented by counsel at the time of his arraignment on March

6

1, 1957, conceivably his case might have been reversed and

remanded ; however, by the method employed, he was unable

to do this under Alabama law. Hamilton vr. State, 270 Ala.

184, 116 So. 2d 906, certiorari denied 363 U. 8. 852; Appendix

A, petitioner's brief, pp. 4a - 6a.

Therefore, said violation of state law should not

be cousidered in this proceeding because the juris-

diction of a federal court is limited to the determin-

ation of questions relating to the denial of rights under

the feierai constitution aud does not extend to the adjidica-

tion of nonfederal questions of state law. State v. Sullivan,

10 Cir. 1955, 227 F. 2d 511, certiorari denied Braasch v. State

of Utah, 350 U. 8. 973. This Court is not concerned with any

contravention of a state's statutes or constitution. Porell v.

Alabama, 287 U. 8S. 45; Williams v. Kaiser, 323 U. 8. 471;

Madden v. Kentucky, 309 U. 8. 8. A decision of a state

court resting on grounds of state procedure, which does not

offend some. principle of justice so rooted in the traditions

and conscience of our people as to be ranked as fundamental,

does not present a federal question. WSpeiser r. Randall,

357 U. S. 513; Avery r. Alabama, 308 U. 8. 444; Broicn v.

Mississippi, 297 U. 8S. 278; Miller v. Teras, 153 U. 8. 3385;

Frank v. Mangum, 237 U. 8. 309; Crooker vr. California, 357

U.S. 433, 440.

Having been unsuccessful in his appeal, petitioner sought

relief by applying for a writ of error coram nobis which,

under Alabama law, is available to a person who claims that

his conviction and sentence is due to failure to observe that

fundamental fairness essential to every concept of justice,

even after the judgment has been affirmed by the Supreme

Court of Alabama.

However, an application for a writ of error coram nobis

should make an adequate showing of the substantiality of the

petitioner's claim to the satisfaction of the state appellate

court. A mere naked allegation that a constitutional right

has been invaded will not suffice. The application should

make a full disclosure of the specific facts relied upon, and

not merely conclusions as to the nature and effect of such

facts. The proof must enable the.court to ascertain whether

under settled principles pertaining to such writ the facts

alleged would afford at least prima facie just ground for the

issuance of the writ. State appellate courts are authorized

to exercise their discretion in matters of this character and

should look into the reasonableness of the allegations of the

petition and to the existence of the probability of the truth

thereof. Johnson rv. Williams, 244 Ala. 391, 13 So. 2d 683; Eur

Parte Seals, 271 Ala. 622, 126 So. 2d 474.

This, then, brings into foeus the question of whether the

Supreme Court of Alabama erred in denying petitioner's

coram nobis petition which, in pertinent part, alleged that

counsel was not appointed to represent him until three days

after he, without benefit of counsel at his arraignment, had

pleaded not guilty to a capital crime, but which contained

no allegation and was not supported by any evidence that he

was prejudiced or disadvantaged in any way by such absence

of counsel at his arraignment ¢(R. pp. 1-7).

The state court grounded its denial of this petition on the

fact that there was no fundamental unfairness which would

violate due process of law inasmuch as the petition contained

no allegation or attempt to show that petitioner was preju-

diced or disadvantaged in any way by the absence of counsel

when petitioner interposed his plea of not guilty.

Such reasoning by the Supreme Court of Mlabama finds

support in the decisions of several federal courts dealing

with capital as well as non-capital cases. In Betts vr. Brady,

316 U.S. 455. a non-capital case, this Court indicated that

only if the defendant has been disadvantaged under the facts

shown to the court, denial of counsel is a denial of due

8

process, In Canizio r. New York, 327 U. 8. 82, it was held

that the constitutional right of an accused in a state court to

the assistanee of counsel will not be deemed to have been

infringed, so as to require the setting aside of his conviction

of robbery in the first degree, unarmed, upon his plea of

guilty, where, although he was without counsel when ar-

raigned and when he pleaded guilty, was unfamiliar with his

legal rights, and may not have been informed by the court of

his right te counsel, it appears that in long hearings during —

the day of sentence, he was actively repreacited by counsel,

whe could have moved to withdraw the plea of guilty, but

apparently thought that it would be to his client's best. in-

terests not to do so,

Almost invariably it is held that absence of counsel at

arraignment. does not constitute a violation of due process

“here the accused enters a plea of not guilty. Couwneil r.

Clemmer, C.A.DC. 1949, 177 F. 2d 22; De Maures cr. Nirope,

9 Cir. 1989, 104 F. 2d 758. This is particularly true where,

shortly after the unaided accused enters a plea of not guilty,

counsel is furnished for the preparation for his trial and for

his trial itself. (United States r. Stevenson, DCD. 1959,

170 F. supp. 315; State rv. Sulliran, 10 Cir, 1955, 227 PF. 2d

511, certiorari denied Braasch v. State of Utah, 350 U. 8. 973.

It is noteworthy that State r. Sulliran, supra, involved a cap-

ital crime in a state court.

”

The ultimate test is “fundamental unfairness” (Crooker

vr. California, 357 U.S. 433), and each ease must stand on its

own particular facts in a determination as to whether or not

lack of representation by counsel constitutes a denial of due

process, ('regea v. Pennsylrania, 335 U.S. 4387; Gibbs vr.

Burke, 337 U. 8. 773.) This court has stated that the test of

disadvantage ix ignorance, illiteracy, feeble-mindedness, or

other like inadequacy of the defendant which makes him

incapable of conducting his own defense in that particular

stage of the proceeding. Powell r. Alabama, 287 US. AD. The

defendant's lack of familiarity with his legal rights has been

wdded. Canizio r. New York, 327 Ul 8. 45. Later, the test

was expanded to include mental illness and inceapability of

questioning witnesses where highly complex legal issues are

involved. VeNeal vr. Culrer, 365 US 8. . BE 8. C't. $92.

In Jones vr. Cochran, 125 So. 2d 99, the Supreme Court

of Florida aptly stated:

“The necessity for the appointment of counsel in order

to meet Fourteenth Amendment requirements is’ in-

fluenced largely by the following factors: (1) the

gravity of the offense, (2) the nature and complexity of

the issue, (3) the age of the defendant. (4) his mental

capacity, (5) background, including education and

experience, (6) Knowledge of law and procedure and,

(7) the degree of protection given during the trial as

appears from the conduct of the Court or prosecuting

officials. 93 L.Ed. 149. No one of these factors alone

is decisive. As pointed out in Betts v. Brady, supra

(316 U.S. 455). it is necessary to appraise the totality

of the facts and decide whether the need for counsel is

so great that the deprivation of such assistance pro-

duces a fundamental unfairness.”

Applying these tests to the case at bar, it seems clear that

the Supreme Court of Alabama correctly denied petitioner's

coram nobis petition.

Admittedly, the offense was of the utmost gravity, but

the issues invelved were not complex. The record does not

reflect petitioner's age, but there is no claim made that he

10

was unusually young. Investigation by the State Board of

Pardons and Paroles reveals that he was not ignorant, il-

literate, or feeble-minded, having reached the eleventh grade

in school, and that two years thereafter he enlisted in the

United States Army in which he served from 1950 until Janu-

ary 1956 (See record filed with the petition for writ of

certiorari, No. 1026 Mise., October Term, 1959, p. 8). This

last mentioned record, pages 9 to 11, coupled with his long

military service, dispels petitioner's intimation that he was

insane or mentally ill. Pages 55 to 79 of the same record

also reflect petitioner's non-professional ability tu testify in

his own behalf and to question witnesses.

Respondent has no knowledge of petitioner's familiarity

with his legal rights, but he was present at his first arraign-

ment on January 4, 1957 when court-appointed counsel plead-

ed him not guilty to an indictment (R. pp. 1, 4, 13) which, in

part, was identical with the second indictment to which

petitioner, unaided by counsel, pleaded not guilty when ar-

raigned on March 1, 1957 (R. pp. 2, 4, 28). The second in-

dictment, as well as the first indictment, arose out of the

same transaction (R. p. 28). Petitioner received no ill treat-

ment at the hands of the trial judge or the prosecuting attor-

ney. Furthermore, it is reasonable to suppose that prior to

receiving his dishonorable discharge from the Army in Janu-

ary, 1956, petitioner was tried by a General Court-Martial at

which he was present and where he observed the legal pro-

ceedings (See record filed with the petition for writ of

certiorari, No. 1026 Mise., October Term, 1959, p. 8).

Counsel was reappointed to represent petitioner on March

4, 1957, three days after the second arraignment (R. pp. 4,

15). Counsel, whose competence is not questioned (R. p. 35),

explained why he considered it unnecessary for him to be

present at the second arraignment, and stated that had he

been present he, too, would have entered a plea of not guilty

a

11

(R. p. 13). Counsel actively represented petitioner at the

trial on April 23, 1957, which was approximately fifty days

after the second arraignment.

It might be argued that had petitioner been represented

by counsel at the second arraigninent, a motion for a change

of venue might have been filed. To this, respondent wishes to

point out that there was no claim made that the climate of

opinion in Jefferson County was such that petitioner coutd

not get a fair and impartial jury trial There is ne elviin

made that discrimination was practiced in the scleetion of

the grand or petit: juries. There is no claim imade that a

continuance would have benefited petitioner,

It miight be argued that had counsel been present. he

would have entered a plea of not gailty by reason of insanity.

True, Code of Alabama 140, Title 15, Section d23 eee Ap

pendix Ad, provides that such a plea must he interposed at

the time of arraignment, but the Alabama courts have held

that such a special plea, with the trial court's permission,

may be filed after arraignment. Baker ro Nfote, 200 Ala.

142. 95 So. 4675 Sheppard ro State, 257 Ala. G26. GO So. 2d

32. Counsel, who was appointed onty three days after pe-

titioner’s arraignment, considered him sane prior to and at

the time.of trial; only the affidavit of petitioner's first cousin,

once removed, dated May 23, 1957 and introduced in support

of a motion for new trial, intimates that counsel. after ob-

serving petitioner's erratic behavior at the trial, questioned

his sanity. There is no evidence that counsel considered pe-

titioner insane prior to the time of trial.

Finally, the petition for leave to file an application for

writ) of error coram nobis contained no allegation and of-

ferec, no evidence that petitioner bad been prejudiced or dis-

advantaged in any way by the absence of counsel at— his

arraignment.

12

Vill

CONCLUSION

For the foregoing reasons, respondent contends that the

judgment of the Supreme Court of Alabama should be af-

firmed.

Respectfully submitted,

MacDonald Giallion

Attorney General

State of Alabama

f George D. Ment:

Assistant Attorney General

State of Alabama

Counsel for Respondent

13 a =.

CERTIFICATE

This is to certify that 1, George D. Mentz, one of the at-

torneys for respondent and a member of the Bar of the Su-

preme Court of the United States, served two copies of the

foregoing Brief and Argument of Respondent on Orzell Bill-

ingsley, Jr. 1650 Fourth Avenue, North, Birmingham, Ala-

bama, one of the attorneys of record for petitioner, bby miail-

ing them in a properly addressed envelope, with first-class

postage prepaid, in the United States mail, and [also served

three copies of the foregoing Brief and Argument of Respond-

ent on Thurgood Marshall, 10 Columbus Circle, Suite 1790,

New York 19, New York. one of the attorneys of record for

petitioner, by mailing them in a properly addressed en-

Velope, with air mail postage prepaid in the United States

mail on the day of October, 1961.

Greorge TD). Ment:

Assistant Attorney General

State of Alabama

State Capitol

Montgomery 4, Alabama

14

APPENDIX

Codeof Alabama 1940, Title 15, Section 423, reads:

§ 423. (4573) (7176) (4939) INSANITY MUST BE SPE-

CIALLY PLEADED AS A DEFENSE FOR CRIME.—

When the defense of insanity is set up in any criminal

prosecution it must be by special plea, interposed at the

time of arraignment and entered of record upon the docket

of the court, which in substance shall be, “not guilty by

reason of insanity.’ Such plea shall not preclude the usual

plea of the general issue, which shall not, however, put in

issue the question of the irresponsibility of the accused by

reason of this alleged insanity, this question being triable

only under the special plea.