# Brief and Argument of Respondentm — Hamilton v. Alabama > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0037%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief and Argument of Respondentm - **Published:** January 1, 1961 - **Citation:** 368 U.S. 52 ## Text 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0037%3A3. Public record. Not legal advice.