# Respondents Brief — Boykin v. Alabama > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0106%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Respondents Brief - **Published:** January 1, 1969 - **Citation:** 395 U.S. 238 ## Text . 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 . % pay a aad . «> : ‘BREF AND ARGUMENT ON THE MERITS _ | BRIEF AND ARGUMENT OF RESPONDENT 9.0. at m8 sirens = ~¢¥.3 A i 7 & J F ’ ‘ 4 ° - : : iS . 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 . £ r 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 i ‘ ‘ e - ~ . ‘s rs . —) “ . « 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- 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 ee >. ae . | 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 “ibea = « s ’ ‘i 2 £ : . s Se ° , > : . ‘ ¢ ‘ > > 2 . ba ad Z ¥ > * - . ‘ ” ¢ ° a eed - _ . . ’ . . ; é ; ” © ‘ ‘ - . 5 - ‘ { . o . !, » 5 —,. 4 ’ . * ‘ : . - . ’ Z : : . + rd ? ‘ : ~ . I - “ _ e ? . p - ” ® ” - --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0106%3A4. Public record. Not legal advice.