Respondents Brief — Boykin v. Alabama

.

co - _ ~

4 - pe oF tg. rey ome

, FILED.

a1)PREME COURT. U. & TILED,

ice nee 7 DEC 23 1968

JOHN F. gence. CLagK

_In The

_Saprome Court of the United States.

OCTOBER TERM, 1968

bo | ‘NO. 642 ° ¢

PETITIONER

| vs.

STATE OF ALABAMA,

\ RESPONDENT

ON WRIT OF CERTIORARI TO THE

SUPREME COURT OF ALABAMA

BRIEF AND ARGUMENT OF RESPONDENT

ee

~-

we a

F

-MacDONALD GALLION

. Attorney General ©.

State of Alabama >

DAVID W. CLARK

Assistant Attorney aeee

State of Alabama

i —

State Administrative Building

Montgomery, Alabama 36104

Counsel for Respondent

oo ee en ee me eee

‘ 7

“INDEX 3

Sabject Index

Opinions ofthe Court Below su

Jurisdiction _>..

Questions Presented

a

Constitutional Provisions Involved

Statement ; arc:

Summary of Argument —_ | _

Argument .

13

13

TABLE OF CASES CITED

In Re Robert Page Anderson, Sup. Ct. of Calif.,

Crim. 11572 : 8

Boykin v. State, 207 So. 2d 412, 416 Dy 1,4

~ Bullock v. Harpile, 238 Miss. 486, 102 So. 2d 687 10

Cobern v. State, 278 Mk. 647, 142 So. 2d 869 8

Dickinson v. State, 202 Miss. 804, 82 So. 2d 881 11

‘Franklin v. Brown, 78 W. Va. 727, 729, 81 S.E. . 7

405, L.R.A. 1915C, 557 lnties , 4

_ Giaccio v. Pennsylvania, 882 U.S. 399, 15 L. Ed. 2d

447, 86 S. Ct..518 = 6

Howard v. State, 194 So. 2d 834 11

Hulsey v. United States, 369 F. 2d 284(1966) 9

Miranda v. Arizona, 884 U.S. 436 - 12

People v. Tanner, 8 Cal. 24 279, 298 6

People v. Keller, 245 Cal. App. 24 711, 714.715 - 6

In Re Frederick Saterfield, Sup. Ct. of Calit.,

Crim. 11573 . 6

Trop v. Dulles, 256.U.S. 96, 89 6

Yates v. State, 251 Miss. 376, 169 So. 2d 792 1

U.S. v. Sorcey, 151 F. 2d 899, Cert. Den. 66 S. Ct.

‘821, 827 U.S. 794, 90 L. Ed, 1021 ___: 5

' Weems v. United States, 217 U.S. 459, 64 L. Ed. 798

80 S. Ct. 544 ,

|

° iii “

_ STATUTES CITED ;

Page

. » £& : Ny

Code of Alabama 1940, Title 14, Section 415. 8 :

Cade of Albee 1940, Title 16, Section 882(1-18) 12

- Code of Alabama 1940, as amended, Title 1, Section Be

818 (1-12) on 12

. D. Srcryig pom tes oa? LSchopinsibneaect ew

Code of Alabama 1940, Title 15, Section 277 10

Code of Alabama 1940, Title 1, Section 3... 4

‘United States Code: Title 28, Section 1257(3) 2

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pay a

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: ‘BREF AND ARGUMENT ON THE MERITS _

| BRIEF AND ARGUMENT OF RESPONDENT

9.0. at m8 sirens =

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se.

} t,7 sap \

age _ OPINIONS OF THE COURT BELOW it Mio ag

Te epnion ot th Supine Geart of aba ee eS

ported as follows: oe ; a

} * ey

‘Edward aie dr., v. State; 1st Div. 408, 207 So. : a

- 412, 416. The decision: of the Hx Court granting

Certiorari is reper sd at 21,L., 2d 98.

ee ‘JURISDICTION

ik citar been graaed's weit of cartoeért trom

the Soren Gon of United States to review the judg-

7S

.

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Try 5, 1068; rehearing dni March 7, 1968, 20 So 20

‘, 412, 416.. Petitioner applied under the provisions of Title 28,

“Section 129T0), United States States ‘Code. :

QUESTIONS PRESENTED ae

1. peiaesoresone- omen |

for robbery, violate the Eighth anid Fourteenth Amendments? ~ oe

ig ae

a

- _Did' the trial court fail to protect petitioner's right

_te due process with regard 'to his plea of guilty? _ oe ee

3. Does the finding of guilty. and punisliment within’ the -

Hits at hy Sn tahen ipetac penoge ie shone of |

a statute providing for separate juries to render verdicts ae

"and asote punishment? .,

a

{We

a 2. ‘

| * CONSTITUTIONAL PROVISIONS INVOLVED ian

“ Séction 1 of the Fourteenth Amendment to the Constitu-

tion -of the United States.

‘ .

: Not

‘ighth Amendment tothe Constitation of the United

>

‘Sais

sel "STATEMENT. | ,

—The-petitioner was tried‘ and convicted | in the Circuit;

Court of Mobile Gone, Alabams, th canal tas Siete

bie The record discloses, that defendant was represented by. -

. court-appointed. counsel and pleaded’ guilty to five separate

indictments chagging” him = ee five, separate

*

SE

enihinien:senmeniiniiy; Maio age pel age a

as charged in the indictment, on his plea of guilty and finding —

that he suffer death by electrocution. Sentence of death by

sec Yoho Sen SEReTN ee DAY CRE NAT pp. #8)...

&. Be LE

SUMMARY oF ARGUMENT a

eee muposition of the deatiy penalty, upon conviction for

Wy uhh ad Perth nena wip oe econ BS

Eighth and Fourteenth Amendments

within the limits set, by State statute.

’ ‘There is no abit eenent of abe ht ails that :

Xs _. ‘the trial judge did not accept a plea of guilty until after —

fee determining that the plea was voluntarily and knowingiy

entered by the defendant and that the defendant fully re-

- alized- and was a to* Ww the Consequences of such

fant *°) tentores 4 “j

°

Ys

\

” ‘The finding of cailks’ iui setting: punishment by the |

le ee

juries for each of these functions, does not violate due Laue

; : : af ; — . ’ ; dy P Ey S “a |

§ ee i _ = bee hy aah al

. 7. . . - ‘ .

af ees . 7 ARG | Eo, Benue

Petitioner argues at serie Tength that the imposition of ..

.the . death penalty upon conviction of robbery is cruel and

unusual punishment violative. of the Eighth and -heaphoencig

Amendments.

_ \Mfitle 24, ‘Section 415, Code of Aiabama 1940, provides’ -!

that “any person convicted of robbery, be punished, at °

the discretion of the jury, by death, or! by imprisonment in _

UT taet be FetnpOn'ss Sod we oe gear

*. Robbecy: fe 0, cosmmiou law, crimp, and Ja. the Selentons ;

taking of mone, or gods of value from the person of another, d

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a Ns wy at at aS ae aan tO ee x 0) nok Bice ee ae sites ee ew, "

- - : -

f repealed by the Legislature. (Title 1, Section 8 Code of

© Alabama 1940). 9. :s14:;931¢5 99 Yate

°

1 ‘Whv-fiopeesen.Gourlisol.Alaimaba in: affizming: the, case

fw’ on certiorari to thia Honorable Court, Réward Boykin,

ay Ir, »: State of Alabama, 207 So, 2d 412, 416, Held:

“Robbery, from the ‘earliest iiceoh. has. always

/ se) gardeda crime o: the gravest character. At common law

the‘ punishment, for robbery was death, with ‘or. “without.

. benefit of clergy, a@eording to varying statutes. |

_.. ¥.Brown, 73 W. Va. 727, 729, 81 8. E. 405, L.R.A. 1915C. eS

| 4 567. .In Laws.of ,Alabama, 1823, page*207,.the punish- ¢-

ment for robbery was death. In the Code of 1852, § $104, -

' page 663, punishment was ten years’ imprisonment. —

~ Since the Revised Code of: 1867, § 3668, any person con-

_, + ©» Nieted of robbery, must be punished, at the discretion of

e ... the jury, either by death, or; by imprisonment for not

“. ' Jess than ten years; or, as in Code 1886, , §:8742, by death 8

or if sa engi for not less than five years; or, 8

; 5479, and subsequent es, by death or

7 by imprisonment for not Igis than Pe:

’ “This ‘Honorable Court in fieons ». United States, mg

Are es Tike eee ruel and :

——

years.”

ted cram A are forb

Sees _-that Amendment to the Constitution. . Cooley, Const. Lim.

ae ) ae Wharton, Crim. Law, 7th ed. § $405!

a, r “That: pasiags ‘wea quited.‘n' Re Kamuler, 136 U.S. 436,

-\ 44-84 Led, 619, 524, 10, Sup. Ct. Rep. 930, and this

comment wus made: “Punishments are cruel when they \

involve torture. or a lingering death ; but the’ punishment

of death is not ‘cruel, within the meaning of that. word

rs ete as used in the Constitution. It implies there something

Dig as a "| inhuman and barbarous, and something more than the

. Sg imere extinguishment’ of life.’ The case was an applica-

‘tion for habeag corpus, and went on: a question of

_ jurisdiction, this.court holding that +} 8th Amendment

did not apply to state legislation. t was not meant in

the language “we have quoted to. give a comprehensive

definition of cruel 371] and unusual *punishment, but:

' only to explain the application of ‘the. provision to the ~~

- punishment of | t 5 describe what

B ssgekigneoster = -—-might make the punishment of death cruel and unusual, ;

- though of itself it is not so.” It was found as.a fact by the

| ' state court Cask, deaths: bey sleckzielty wan Boome jegraame

a “eden deqty by, haneiae.” hat

eee get cas ot Balog ilidionas eet i

‘ _ Alabama ‘upon conviction of robbery is punishment, at the

| Sean sh haere i. Sst, Semele je te

| EERE "Penitentiary for not,less than ten years. ‘i : ,

@ Whecy, the sentence, iemponed. te; within tho. limita: pce-

<cxied ystatute, tox the, fens, on itted, it ordinarily

will not be regarded as cruel and unusu ‘U. S. v: Sorcey,

161 F, 24 908, Gast. Den. 66 8, Ch, 82,897 UB. Thy 90 LP

; Bd./1021, 2a kB fee TE

ers — , ‘tg 3

= Spas .

Se NE Fees: gy. SS 4

127 298; People'y, Keller, 245 Cal. App. ee

“9d 712, "14-715.) ghee Dulles ped 200) a

US. Pe re ee ee . that ——

~~.

of erat”

I ieee Ye Weetand eat, pucon charges

with the offense the same chasice for leniency as well as_

le po SoA am. sentence,

‘is nothing Giseriminatory int the ‘stahite.”

* Responder " pdapetteatly bent that is’ adequtaly

_ ,@xplains away any ‘pdssible contention’ that a’ cod’ section is ..

unconstitutional because of agueness in allowing the ju

y Bunt “without mention of standards tor

te" 88 ie $4 aT cice :

“of tl 4 ;

WIS 4S. Lawatsrlgl

1 fetal led sebibines tin key Péintide -

vendo; 882.US, 899, 15 Ra. 24 447, 96-8, Ct 618, wherein

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~ ah $73) ' mo

yf

+ i adeno a jury to aaees ‘conta’ against an

‘enable ‘a defendant ‘to protect himsélf against

acquitted defendant was held constitutionally invalid because

of vagueness and the’ abserice of any’ standards 6

iSipnd. bo: oleh; no, doubt whatever on

i nality.of the settled practice in many states

16 Teave to juries ‘finding defendants ¢ aur ‘of a crime —

ne power to fix "punishnient within legally legally prescribed '

limita.” i , ‘ .

“" Adsbsicna, has, ed: Ghe sactce to. robibcey tole W's

Sixy Siedling. the velit Gad. laos tow Ceiowadt titel ;

thé limits. set out. by the Code for many years: Respondent

Jeldhee me ee

-Honal rights of the accused. - : aig

. What group is better able to arrive at the sii

of punishment than the jury which evidence; ‘had

been afforded the opportunity to see: and hear the witnesses

on their credibility, and front the evidence determine ;

| the gravity of the crime and ‘whether the is guilty.

It is obvious that the same jury which the evidence and

returned the verdict is in better position to fix the }

ey caine nee eee

~ merely is called in to fix punishment.

Ai lily cen ws bid ws Hephal esict

has been made to show racial discrimiriation fn the’ givittg of

~<

the death penalty in eases of robbery convictions. Figures

ate cifed which’ disclose’ that '6: Negrdes: ‘executed: for:

robbery in Alabama from 1982'to'1962 a: another set ‘that

6 Negroes were execated trot 902 to 1967" bt no"

- Responden

in Alabama: for ‘robbery in the last ix yeats.’ James W.° ”

Cober 2," a white'nian, ‘was exetuted' on’ September’ 4) 1964.

No‘Negroes were executed for robbéry during that period.”

‘ ee

—

commission. ef the, ctime (2), .

cama), serene

5 ie wr it Beh oe

‘ deterrent to robbery in a city.’ Mobile liad’ just experienced

onl te le ce moar ede

* ebiiomars”in'iis' brief, has poikted out Past there was

a viokat death aa'a remult of the robbery in

$78 Ala. 647, 142 So, 2 869. ‘That is true. Cobern killed his

‘vietim. The State ‘of Alabama had two indictmeMts against

for murder and one for robbery. Because the

Victim was the girl friend of Cobern, a married max, there

oe; Sr tarmac bate

2 aon ck cto pe 18

“he people of Alabams and most of the rest of the people

es ) akip oy pear seat

Atararamrink #8 g:reinleterr™. .

ak petitioner: that Setaalen

ns ta tne, tn sens Imps open

RABY SIO Ate. 6% i Z Diver iy _

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Ree | £i tier Fs

not merely

to establish

mad a, Lf 24, ‘pages 556, 657, statp that the trial

is not relieved of ‘the’ duty ‘Of sscertaining’the consequences —

¢ of his piéa anid of advising him of such € cssiniag hs te

Seibel eb et a0

oe “ ¥ < a me eh ee Bia ssy ® %

haw t} a atte Tir y SUSs a Sikee F 77 3

: -lgah anewee tot SRTAN-weeny Wa was es

6 Teel hataleahy spor aaorindonast eM ee

Sy have’ been >with n before. such plea of guilty. can” ite

Poe Pe ho a oo -

3 i xalsen presamption that what ought to

f deceeae the contrary, we must

“ay ae saw: to it that fhe plea was voluntary, ; |

She ~ "+ the defendant fully realized. andwas competent to know eee

For apes ogc ool State v: HIE 81 W. Va. :

OS SE. 2, 6 ALR. vr: ‘

‘ et “Ee TTS

a

ae ‘must eguse the punishivent to-be determined by » jury, |

- except where the punishthent is by law | oe i

Hi -Semed by. the court; and may, in alh eases Which @ ea of -.

% entened,: cause; witnesses; to: be. — . Se

af & sancorthin he: aracte: } of, Ae pifenie.!” fy: a asly a J .

‘plea. And’ stich is ie ‘in my opto the holdings of ‘

Bho Maiipp Seprems Court in Di +. State, 202

toe Se , Miss. 804, 82 So. 2d 881, and Yates v. , 251. Miss.

re B10, 160 8, 24792, ted and raed upon in the diasnt-

— :

| ig Hoch 3

Co Steg towne Y State (Ala. Sup. Ct), 194 Sot 2d 884, in

: ~ reviewing the action of a trial court in a post conviction —

, proceeding, we observed :‘An accused's plea of guilty may —

" -be accepted only if it is made vohmtarily and kndwingly.

If it appears that a guilty plea is the product of coercion,

ee WIN. either mental or physical, or..was unfairly obtained or

eae "Piven throug ignorince, fear or insdvertunce, it is void

since it is avvidtetien af constitutional safeguards.’ (194

_ © Sq. 2d, 887-838). ‘In my opinidn’the lahguage just quoted

ae is to the sume effect as that quoted im.the dissenting

cot etnanti tiie, Weiia: Biay t SI ee Paty

Ok li it ae int ity pa

that'such a plea was vo

and knowingly éntered by the defendant. “But”

: A ROPAAE OO, MRNAS IOS ent supra,

“tial judgn made teh» determina The’ effect ‘of

wht

: ae

"2 ae?

, : eae &

hii "th le i ts daaapn ys aarhypaedl

teh ot ‘%. orance he wi TOK basen

“a opfect of having: 2 ms

bite perituiss oh:and ebyrediaberaa

ic ppt ipelvienbanney In such a

of course, | the petitioner would be required

to. produce | ‘in. support of his contentions: ‘But,

ee ene Pe ve

. Would. justify a. feversal of apy: of, those possi con-

‘tentions.” Ply

oo e., ; ;

¥: —D Seat 4

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| It’ is Heapecktally steeathse ‘out that the puiiitiees had

-- court-appointed counsel, Evan Austil (R. p..3). The cases

cited by petitioner having to do with waiver of counsel are

inapplicable. ‘Also, an attempt to put a Miranda tag on this.

case is not applicable... Mirangyy». Arizona, 384.U.S. 436, had

to, do with constitutional warnings prior to questioning a

regs fmt tons $l

-

behastibe Supronhe Court of Alabama ‘pelted out if the

trial court failed to ascertain the voluntariness of the plea, or

if defendant failed.to comprehend the effect of all five cases

being tried before an unstruck jury, or if he considered

counsel inadequate, he could raise these points on coram

" nobis... Title 15, Section 318;(1-12), Code of Alabama 1940,

, as amended, provides for appointed counsel on such hearings.

Also, federal: habeas corpus. is available ahd the District

. Judge always appoints, cosineel for such ain —

“The Supceme Court of Alsbams, undée the Aitiomstic

Appeal Statute, Title 15, Section G88 (4-18), of Alabama

: ‘ ; + BOLIC bias:

Me CONCLUSION ae ee

. For the heii reasons,’ wenentent submits that

petitioner was indicted, tried,: . convicted . and sentenced

‘ properly and that neither the Eighth nor Fourteenth

" ments to the Constitation was’ vidlated #f the trial ‘the:

petitioner. - acs ys this case —— be afiirmed. |

eee "Respectfully submitted,

°

* CDONALD GALLION ©

Attorney General of Alabama

b> eee ee DW: Unk

; : } - « DAVID W. CLARK - :

na as - Assistant’ Attorney General -

ee 5 ee ‘of Alabama |

A caer, Gare ; oc eee " State Administrative Building

. OF eo oe eons ES \\ Montgomery, Alabama ’36104'

r 2 an : pe ee yt -. Counsel for Respondent

a #3 \ : ; “

ee

| 1 CERTIFICATE ee

i * David w Sterk, of the sialasiiida for tespondant, te

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

States, hereby certify that on the . eA. day of December, —

1968, I served a copy of the foregoing brief and argument of

“' . respondent on writ of certiorari on one « ‘2. attorneys for

the petitioner, and.one of the attorneys for <a.A.C.P., Legal

Defase and Educational. Fund Inc. and National Office for _

«the Rights of: the Indigent, by mailing a copy in a duly

14

ran earns to sd ttorey of rind, and amie

ee OS |

=

New York, New York 10019

DAVID W. 7

: #2 “Assistant Attorney

, : of the’ State of Alabama).

ae Pale Administrative Building

3 Montgomery, Alabama’ 36104.

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