Petition for Writ of Certiorari — Robinson v. Alabama

Difice - Supreme Court, U. S.

FILED

S?3

JUL 23 lon

4 HAROLD B. WILEY, Clerk

IN THE

SUPREME COURT OF THE UNITED STATES.

No. 2 3 0

THOMAS FLOYD ROBINSON,

Petitioner,

THE STATE OF ALABAMA,

Respondent.

6th Div. 618.

ON PETITION FOR CERTIORARI TO THE

COURT OF APPEALS OF ALABAMA.

MATT H, MURPHY, JR.,

331 Frank Nelson Building,

Birmingham 3, Alabama,

Attorney for Petitioner.

— Eames

Sr. Lovis Law Parrrme Co., 415 North Highth Street. CEntral 1-4477.

Page

rr nen reer rrero ga trne ose res. 1

Opinion below ........eeeeeeeeeeeeeereeeeeeeeenees 2

De. og ic kes Kcaveriecivunewsaeseeeeereeness 2

Statutes involved .....cccccescccscccccccccevceccers 3

Dit oi. vc cis cacccenceonscnctcenss wee sasnanen 3

Question involved .........eeeeeeee cree eee eereneees 3-4

Argument .......... ‘oc ckea ke etka wae keeeeenenee 6

Appendix:

Notice of petition for certiorari to the Supreme

Court of the United States............eeeeeeeees 9

Opinion of Alabama Court of Appeals...........-. 10

Cases Cited.

Brown v. State of Mississippi, 297 U. S. 278, 80 L. Ed.

i. 6k CR ah a aes 6

Green Bay and Mississippi Canal Company v. Patten

Paper Company, 172 U. S. 58, 67, 68, 43 L. Hd. 364. . 7

Henderson v. The State of Florida, 20 So. 2d 651, 155

| Seer errr reer rere ue rCtr tet es 8

Louie Young v. Coleman, 5 Fed. Supplement 702...... 6

New York ex rel. Bryant v. Zimmerman, 73 L. Ed. 187,

Sie S err wer rrorrrey Trier ere e ye 7

Oxley Stave Company v. Butler Company, 41 L. Ed.

1147, 166 U. S. G48... ... cece cece e cece ence eeeee 7

Powell v. Brunswick, 37 L. Ed. 1137, 150 U. 8. 440.... 7

Statutes Cited.

C. A., Constitutional Amendment 14, Section 1... 3,6

8S. C.

U.S.

28 U. A., Section 1257 (3).........eeeeeseceeeee 3

IN THE

SUPREME COURT OF THE UNITED STATES.

THOMAS FLOYD ROBINSON,

Petitioner,

VS.

THE STATE OF ALABAMA,

Respondent.

6th Div. 618.

ON PETITION FOR CERTIORARI TO THE

COURT OF APPEALS OF ALABAMA.

To the Honorable Chief Justice and Associate Justices

of the United States Supreme Court:

Petitioner petitions this Honorable Court for a writ of

certiorari to the Court of Appeals of Alabama, to review

and determine the decision rendered by said Court.

Respectfully submitted,

MATT H. MURPHY, JR.,

Attorney for Petitioner.

Rey ae

Your petitioner, Thomas Floyd Robinson, through his

attorney of record, Matt H. Murphy, Jr., of Birmingham,

Alabama, hereby respectfully petitions this Honorable

Court to review and determine the decision rendered by the

Court of Appeals of Alabama, in that certain appeal in

said court numbered and styled: Sixth Division, No. 618,

Thomas Floyd Robinson vs. The State of Alabama. Not

officially reported.

(a) Petitioner was convicted under an indictment charg-

ing him with the carnal knowledge of, or abuse in the at-

tempt to carnally know, a girl under twelve years of age;

and was sentenced to the penitentiary for ten years.

(b) The jurisdiction of this Honorable Court is in-

voked because petitioner contends that he has been denied

the rights and privileges conferred by the ‘‘due process”’

clause of the Constitution of the United States.

(i) The Court of Appeals of Alabama rendered judgment

of affirmance in the above styled cause on December 1,

1953.

(ii) Timely application for a rehearing was made to

said Court of Appeals, and by said court overruled on

January 5, 1954.

Timely petition for a writ of certiorari to the said Court

of Appeals, was filed in the Supreme Court of Alabama.

The Supreme Court of Alabama declined jurisdiction by

denying the writ.

Timely application for a rehearing was then made to the

Supreme Court of Alabama, and on April 22, 1954, the Sn-

preme Court of Alabama overruled said application for a

rehearing.

It is respectfully submitted that by the action of the

Supreme Court of Alabama, in denying the writ, that there-

upon the Court of Appeals of Alabama became the court

of last resort.

on ae

Application for stay of judgment in the granting to the

petitioner of the right to apply for a writ of certiorari

from the Supreme Court of the United States to the Court

of Appeals of Alabama, was granted by said Court of

Appeals on the 6th day of May, 1954. Said Court of

Appeals granted a stay of ninety days within which time

petitioner is required to apply for said writ of certiorari

to the Supreme Court of the United States.

(iii) The statutory provision, believed to confer on this

Honorable Court jurisdiction to review the judgment by

writ of certiorari, is 28 U. S. C. A., Section 1257 (3).

(c) During the course of the trial before a jury, it was

made known to the trial judge, that a witness, while on

the stand, under oath, and being questioned by counsel for

the defense, was receiving negative and positive signals

from a bystander in the court room. Both the witness and

the bystander admitted in open court that positive and

negative signals had been transmitted by the bystander

and received by the witness.

Motion for a mistrial was made on the grounds that this

course of conduct denied petitioner a fair and impartial

trial under United States Constitution. This motion was

overruled by the trial court and exception reserved. On

appeal, the Court of Appeals of Alabama affirmed the

decision of the lower court.

(d) The constitutional provision that this case involves

and relied on, is U. S. C. A., Constitutional Amendment 14,

Section 1.

‘‘All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the state wherein

they reside. No state shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any state de-

sisal

prive any person of life, liberty, or property, without

due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.”’

(e) Petitioner respectfully submits that his statement of

the case called for in the rules under (e) is covered in

(c), supra.

Mr. Binzel, father of the prosecutrix and Alvin, while

being questioned as a witness, testified that he nodded

in assent after Alvin made an answer to a question (Trans.

p. 111).

In answer to another question, Mr. Binzel stated that

while Alvin was being questioned, he shook his head from

side to side during the question (see ‘Trans. p. 204).

Alvin Binzel, the seven year old brother of the prosecu-

trix, and son of Mr. Binzel, was on the witness stand,

under oath, and testifying, and the following questions

were answered in the following manner:

““Q, Did you see him (your father) shaking his

head when I asked you that question?

A. Right after you asked it?’’ (Trans. p. 199.)

‘“‘Q. Right after I asked the question, did you see

him shake his head like this (indicating), from side to

side?

A. ‘Yeah’ ”’ (Trans. p. 199).

‘“‘Q. Did you see him on another occasion shake

his head up and down (indicating) ?

A. He went like this (indicating) and then like this

(indicating)’’ (Trans. p. 200).

‘‘Q, In other words, he shook his head this way

(indicating) and on another occasion, he shook his

head up and down, is that correct?

A. *Yes’’’ (Trans. p. 204).

(f) The federal question sought to be raised came at a

stage in the proceedings in the court of first instance by &

in ee

motion for mistrial, immediately following Alvin Binzel’s

testimony, questions and answers as set out above. The

motion was overruled and exception reserved. The motion

is hereby set out as it appears in the Transcript, page 202:

‘‘Mr. Murphy: On this ground: That when a de-

fendant is on trial in a court of justice in a criminal

matter, especially a serious charge of this nature, he

is guaranteed by the Constitution of the United States

and the courts of the State of Alabama to a fair and

impartial trial, and, certainly, there can be no fair-

ness in a proposition where a person who is sitting

back in the back of the courtroom and who is calling

signals and designating how a witness can testify.

That is a fair inference that may be drawn on what

actually occurred here. And, if you have a man who

is back in the courtroom, nodding and shaking his

head, with a witness on the stand who is testifying

in regard to a criminal matter, there can be no fairness

and justice if that sort of practice could go on; cer-

tainly, we would have nothing but a legal shamble if

a man back in the courtroom tells a witness what to

say in a criminal matter where a man’s life is at

stake. And on those grounds we move for a mistrial.’’

The manner in which the federal question sought to be

reviewed was raised in the Appellate Court, was embodied

in the motion for a mistrial, said motion being fully set

out in the transcript of the record, and was before the

Court of Appeals on the appeal of this cause, when the

case was affirmed.

en ee

ARGUMENT.

(h) Petitioner respectfully submits that the state courts

have decided a federal question of substance, in a way

probably not in accord with the applicable decisions of

this court.

The transcript shows that the trial judge, in overruling

the motion for a mistrial, put the stamp of approval on a

course of conduct which did not adhere to established pro-

cedure, the law of the land, and deprived the petitioner of

a fair and impartial trial under the United States Con-

stitution, in violation and denial of rights under the ‘‘due

process’’ clause of said constitution.

Petitioner respectfully submits that a fair interpreta-

tion of the transcript, in connection with the questions

and enswers of Alvin Binzel and his father, condensed,

would be about as follows:

That some answers made by Alvin were not answers to

questions put by counsel, but were in conformity with the

positive or negative signals given or made by his father.

Further, that, in reality, the jury was hearing, through

Alvin, some answers not responsive to questions put by

counsel, but answers in conformity with signals given or

made by the father and relayed by Alvin to the jury.

Petitioner further submits that the foregoing course of

conduct, reveals that the action of the trial court was 4

denial of rights of the petitioner under the ‘‘due process”

clause of the constitution, and a failure to observe that

fundamental fairness essential to the very concept of jus-

tice. Brown v. State of Mississippi, 297 U. S. 278, 80 L.

Ed. 682, U. S. C. A., Constitutional Amendment 14, Section

1, DC Idaho, Louie Young v. Coleman, 5 Fed. Supplement

702.

Petitioner earnestly contends that the motion for a mis-

trial was sufficient for the presentation of the federal

aie Mere

question to the trial court, for that it appears from the

motion that such rights were set up and claimed in such a

manner as to bring the federal question directly and un-

mistakably to the attention of the trial court.

No particular form of words or phrases has ever been

declared necessary in which the claim of federal rights

must be asserted. It is sufficient, if it appears from the

record, that such rights were specially set up or claimed

in the state court, in such a manner as to bring it to the

attention of that court. Green Bay and Mississippi Canal

Company v. Patten Paper Company, 172 U. S. 58, 67, 68, 43

L. Ed. 364.

The Court of Appeals affirmed the decision of the trial

court, and in the opinion it manifestly appears that the

Court of Appeals took direct cognizance of said motion for

a mistrial, and in so doing could not have failed to see

that the federal question was directly and unmistakably

incorporated in said motion for a mistrial.

Quoting from Green Bay and Mississippi Canal Com-

pany v. Patten Paper Company, supra, we find the follow-

ing:

‘Tt must appear from the record in the case, either

that the right so set up and claimed was expressly de-

nied, or that such was the necessary effect in law of

the judgment.

‘If it appears from the record, by clear and neces-

sary intendment, that the federal question must have

been directly invoked so that the state court could not

have given judgment without deciding it, that will be

sufficient.’’

Other cases believed to support jurisdiction: Powell v.

Brunswick, 37 L. Ed. 1137, 150 U. S. 440; Oxley Stave Com-

pany v. Butler Company, 41 L. Ed. 1147, 166 U. S. 648;

New York ex rel. Bryant v. Zimmerman, 73 L. Ed. 187, 278

U. S. 63.

site Mein

Petitioner’s reliance for a reversal of the case, in the

state courts, was what was claimed to be a denial of rights

under the ‘‘due process’’ clause. These asserted rights

were embodied in a motion for a mistrial, that said rights

so set up and claimed show that the federal question was

directly invoked in the trial court, and on appeal was be-

fore the Court of Appeals, and that said court could not

have given judgment without deciding it, or considering

the federal rights claimed.

Petitioner recognizes that a state is free to regulate pro-

cedure of its courts, in accordance with its own concep-

tions of policy, unless, in so doing, it offends some prin-

ciple of justice, so rooted in the traditions and conscience

of the people as to be ranked as fundamental. Brown v.

State of Mississippi, Supra.

Petitioner respectfully submits that ‘‘due process’’ of

law contemplates trial in a criminal case which adheres

to established procedure, that is, ‘‘the law of the land,’

and having been denied this fundamental right, petitioner

was deprived of a fair and impartial trial under the ‘‘due

process’’ clause of the Constitution.

Of these elements of fundamental safeguard, an ac-

cused may not be deprived either by statute or rule of

court.

When the provisions of statutes or rules of court collide

with provisions of the Constitution, they must give way.

Henderson v. The State of Florida, 20 So. 2d 651, 155 Fla.

487.

Petitioner respectfully requests that this petition be

granted, directing the Court of Appeals of Alabama to re-

verse the judgment of the Circuit Court of Jefferson

County, Alabama, and set aside the order of said Court

of Appeals in affirming said cause.

Respectfully submitted,

MATT H. MURPHY, JR.,

Attorney for Petitioner.

per ey

APPENDIX.

In the

Court of Appeals of the State of Alabama.

Thomas Floyd Robinson,

Petitioner,

vs.

The State of Alabama,

Respondent.

6th Div. No. 618.

NOTICE OF PETITION FOR CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES.

To the Honorable Si Garrett, Attorney General of the

State of Alabama:

Notice is hereby given that Thomas Floyd Robinson, the

petitioner above named, hereby petitions the Supreme

Court of the United States, for a writ of certiorari to re-

verse the judgment of the Court of Appeals of Alabama,

affirming the judgment of conviction entered herein on

December 1, 1953.

Matt H. Murphy, Jr.,

Attorney for Petitioner.

State of Alabama,

Jefferson County.

I, Matt H. Murphy, Jr., attorney of record for Thomas

Floyd Robinson, Petitioner herein, having been first duly

sworn, deposeth and saith, that on the 8th day of July,

1954, I served a copy of the foregoing petition for certio-

~~ 10.

rari and the foregoing notice, on the Hon. Si Garrett, At-

torney General of Alabama, Counsel of Record for the

State of Alabama, Respondent herein.

Matt H. Murphy, Jr.

State of Alabama,

Jefferson County.

Sworn to and subscribed before me, Floyd G. Ansley, a

Notary Public in and for said County in said State, on

this the 9th day of July, 1954.

Floyd G. Ansley,

(Seal) Notary Public.

The State of Alabama—VJudicial Department.

The Alabama Court of Appeals.

October Term, 1953-54.

6 Div. 618.

Thomas Floyd Robinson

v.

State.

Appeal from Jefferson Circuit Court.

Price, Judge.

Appellant was convicted under an indictment charging

him with the carnal knowledge of, or abuse in the attempt

to carnally know, a girl under twelve years of age; and

was sentenced to the penitentiary for ten years.

The evidence for the State was to the effect that Marty

Binzel, a little girl nine years of age, and her younger

brother rode their bicycles to the Shades Cahaba School

- Defend-

in Homewood, on the afternoon of July 2, 1952. Defe:project

ant was the foreman in charge of a construction projl build-

involving the addition of a gymnasium to the school bu’

ings. ding to

Defendant invited the children inside the building After

look at some blueprints of the new construction. Affendant

a few minutes the little boy went outside and defend where,

invited the little girl into a bathroom or toilet, wh: knowl-

according to the prosecutrix, he had actual carnal kno

edge of her. testified

One of the workmen employed at the project testie rooms

he saw the children with defendant in one of the ro

looking at the blueprints. all abra-

There was expert medical testimony that a small aby medi-

sion and redness of the genital organs, disclosed by m assault

cal examination, could have been caused by an assix identi-

such as was described in the evidence. Prosecutrix ide a police

fied defendant as the man who abused her from a pc

line-up next day. te lade

The State’s evidence was that prosecutrix left hy,

around 3:00 and was gone 45 minutes or an hour. h toe

Defendant testified he went to town after lunch to nq to get

chase some parts for a mortar mixing machine and tc and 3:00

a haireut. He returned to the job between 2:30 and y to have

o’clock and went to a filling station a block away to» job about

some spark plugs cleaned. He was back on the job ®orking on

3:15 and spent the remainder of the afternoon workin

the mixing machine which had broken down.

that after-

He testified he saw no children at the school that &s testified

noon and denied the offense. Various witnesses tes; dant was

that during the period of time involved defendant

working on the cement mixer.

The filling station attendant testified in rebuttal _ eve

State the spark plugs were cleaned between 1:30 and

—

eicins

o’clock, and defendant left the station at 2:00 o’clock. a

Defendant’s rebuttal witness testified defendant came to al

his barber shop around 1:30 and left about 2:00 o’clock.

Numerous witnesses testified to defendant’s good char- ve

acter. M

e

The rule is well established that in a criminal case the

defendant is not entitled to the general affirmative charge a

if the evidence affords a substantial inference against him.

Kabase v. State, 31 Ala. App. 77, 12 So. 2d 758; Hargrove

v. State, 147 Ala. 97, 41 So. 972; Lee v. State, 246 Ala. 69, f

18 So. 2d 706. Clearly, under the evidence adduced, the ’

general charge was properly refused. f

Appellant’s counsel argues for a reversal two occur- f

rences during the trial. The first of such incidences com- I

plained of was that Alvin Binzel, seven-year-old brother

of prosecutrix, was called as a witness by defendant.

Reverend Herman Lowery was brought from defense wit-

ness room and caused to stand before the witness. In |

response to questioning by defense counsel the little boy |

said he didn’t see this man at the school and didn’t think

he had ever seen him before. At this point defendant’s

counsel informed the court it had been reported to him

that someone in the courtroom was signalling to the wit-

ness.

The court admonished the spectators and advised them

that any person found to be conveying directions to the

witness as to how he should answer questions would be

held in contempt of court and would be dealt with accord-

ingly.

The jury was caused to retire and the offending spectator

was called before the court. This was found to be Mr.

Binzel, the father of the witness. He denied giving direc-

tions to his son as to how the questions should be answered,

=

a wn

and stated he merely nodded his head in assent after the

answers were made by the witness.

Defendant moved for a mistrial on the grounds the

nodding of the father’s head in consent or assent to the

testimony given by the son was done in the jury’s pres-

ence, and may have prejudiced the witness in testifying.

The court asked the little boy if he saw his father making

any signals and the witness stated he saw his father shake

his head once after he had answered a question.

The court overruled the motion for a mistrial and de-

fendant reserved an exception. When the jury was brought

pack they were interrogated by the court as to whether

they had observed Mr. Binzel while the child was testi-

fying. Two jurors answered they saw him reading a

newspaper or magazine.

Later in the trial defense counsel recalled the little boy

to the stand and in the presence of the jury questioned

him as to whether his answers to the questions had been

given in response to the nods and shakes of his father’s

head. The witness said his father had talked with him

the day before he was on the stand and told him to answer

the questions ‘‘yes’’ or ‘‘no.’’ He was looking at his

father when he was asked whether he had ever seen Mr.

Lowery, and he saw his father shaking his head right

after the question was asked, and when another question

was asked his father shook his head up and down. The

court asked: ‘‘Was that before or after you answered the

question?’’ The answer was: ‘‘Tt was after.’’

Defendant again moved for a mistrial. The court over-

ruled the motion and defendant excepted.

Mr. Binzel was then recalled to the stand by defendant.

He stated he had told his son to tell the truth and to answer

the questions ‘‘yes,’’ or ‘éno.’? After his son had said he

didn’t think he had ever seen Mr. Lowery he nodded his

head in assent.

me gs

In situations such as is here presented it is well settled

that since the trial court had the opportunity to see and

hear everything that transpired, of necessity, much must

be left to his sound discretion and his rulings will not be

disturbed unless it clearly appears that such discretion

has been abused. Swindle v. State, 27 Ala. App. 549, 176

So. 372; Wyatt v. State, 36 Ala. App. 125, 57 So. 2d 350,

cert. den. 57 So. 2d 366. We cannot say the action of the

court constituted an abuse of the sound discretion vested

in him.

co eae

The second point argued in appellant’s brief occurred

during the Solicitor’s closing argument. We quote again

from the record:

‘‘Mr. Murphy, Jr.: I object to some reference to

some Vice-President, as some other case—res inter

alias acta in Mr. Perry’s argument. It is incompetent

and immaterial and not part of this case, and has no

bearing on this case; it is going outside the realm of

proper argument.

Mr. Perry: I am talking about sex fiends and men

like this and how they operate.

The Court: I think it is illustrative. Overrule.

Mr. Murphy, Jr.: We except.”’

Counsel cites and relies upon the decisions of the courts

which hold that a trial judge should be careful to say

nothing during the progress of a case which can be con-

strued to the prejudice of accused and argues, ‘‘At this

point, we have the solicitor calling the defendant a ‘sex

fiend,’ and it is manifest that the court concurred in the

opinion of the solicitor, for the court said that the solici-

tor’s remark was ‘illustrative,’ which means to illustrate

or exhibit distinctly. In other words, the solicitor had,

in the opinion of the judge, correctly described the de-

fendant, and was anxious for the jury to know what he,

the judge, thought about him, this remark constituting as

flagrant an invasion of the province of the jury as was

ever attempted by a judge in a court of justice.”’

The fallacy of such argument is that, as we interpret

the record, defendant’s exception was to the court’s over-

ruling of the objection to the Solicitor’s argument and

not to the court’s remarks. In the absence of an exception

to the statements of the court they cannot be considered

by us on appeal. Stokley v. State, 254 Ala. 534, 49 So.

2d 284; Thomas v. State, 126 Ala. 4, 28 So. 591; O’Neal v.

State, 18 Ala. App. 425, 93 So. 49; Davis v. State, 20 Ala.

App. 131, 101 So. 171.

It is permissible for a Solicitor to comment upon the

evils generally of the crime which the law he is seeking

to enforce intends to prevent. Dollar v. State, 99 Ala. 236,

13 So. 575; Pitman v. State, 148 Ala. 612, 42 So. 993.

From the recitals in the record we are not informed as

to what the Solicitor really said, therefore this ruling of

the court is not presented for our review. 7 Ala. Dig.

Crim. Law 1119 (4), and cases cited.

No reversible error appearing in the record, the judg-

ment of the trial court is affirmed.

Affirmed.