Hines v. State Court Documents

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THOMAS LEE HINES

App61lant,

v.

STATE OP ALAB

Appe11ee.

IN THE COURT OF CRIMINAL APPEALS

OF ALABAIUJ\

)

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' Nos. 79-200565
) 79-200166
1 79-200167

; 
ro-ol.8eo

. 6 Div. 573
)

)

APPLICATION FOR REHEARING AND BRTEF IN SUPPORT
OF APPLTCATION FOR REHEARING UNDER ALA. R. APP. PRO. 10,

STATEMENT OF FACTS UNDER ALA; .R;.APP';.PRO: 39(K),
AND CONDITIONAL PETITION FOR A WRIT OF MANDAMUS

AND/OR PROHIBITTON, UNDER ALA. R. APP. PRO.- zL(A)

ELATNE R. JONES DEMETRIUS C. NEWTON
. BRENT SIMMONS L722-2L2L Bullding

Sulte 91O 2L2l North Eighth Avenue
806 15th Street, N.W. Birmlngham, Alabama 35203
Washington, D.C. 2OOO5

JACK GREENBERG OSCAR W. ADAMS, III
JAI\,IES S. LTEBNIAN 16OO-2L2L Building

Suite 2O3O 2t2l North Eighth Avenue
10 Columbus Circle Birmingham, Alabama 35203
New York, New York 1OO1-9

Attorneys for Appellant-Petitioner



Appellant,

v.

STATE OF ALABAMA,

IN THE COURT OF CRIMINAL APPEALS

OF ALABAIWq

THOMAS LEE HINES )
)
) Nos. 79-200465

79-200466
79-200/*67
80-o 1 890

6 Div. 573
Appe1lee.

APPLTCATION FOR REHEARING AND BRTEF TN SUPPORT
OF APPLTCATION FOR REHEARING UNDER ALA. R. APP. PRO. 40,

STATEMENT OF FACTS UNDER ALA. R. APP. PRO. 39(K),
AND CONDITIONAL PETITION FOR A WRIT OF MANDAMUS

AND,/OR PROHIBITION, UNDER ALA. R. APP. PRO 2T(A)

Appellant and Petitioner, Thomas Lee Hines Ihereinafter,
,,appel1ant"], by_counsel, hereby respectfully requests the Court,

pursuant to A1a. R. Crim. Pro. 40, to grant rehearing of its

June 8, 1981 Order dismissing the above-referenced Appeal, on

motion, dated June 5, 1981, by Appellee, the State of Alabama.

As is demonstrated in the attached Statement of Facts, filed

pursuant to AIa. R. App. Pro. 39(k), and Brief in support of

Application for Rehearing, filed pursuant to AIa. R. App. Pro. 40,

this Court does have clear appellate jurisdiction to hear this

appeal in light of the finality and irreparability of the Circuit

Court's Orders of December 15, 198O denying appellant's Amended

Motion to Clarify Alter or Amend the Order of November 24, 1980

(as amended on December 3, 1980) and to Release Defendaiit From

Custody Forthwith Unless Civil Commitment Proceedings Are

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fmmedlately Instltuted, and denying appellant's Motion to Dismiss

the fndictment.

Appellant further respectfully requests, pursuant to

A1a. R. App. Pro. 39(k) that the Court, if it should deny

petitioner's application for rehearingr, add the Statement of

Facts, included herein, to its opinion dismissing appellant's

appeal, because the facts discussed in said Statement are necessary

to an accurate and proper understanding of the issues raised in the

appeal and of the Court's jurisdiction to hear that appeal.

Appellant further respectfully requests, pursuant to A1a. R.

App. Pro. 2L, if his application for rehearing is denied, that the

Court issue a writ of prohibition or writ of mandamus directing

the Circuit Court to dismi-ss the indictments pendi.ng against

appellant and to release him from custody unless civil commitment

proceedings are immediately instituted against him. Because

petitioner ' s present confinement in Alabama state mental institu-

tj.ons by order of the Circuit Court is permanent, and is patently

unconstitutional under the Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution, see Jackson v.

Indiana , /*06 U. S . 7L5 (1972) ; Klopf er v. North Carolina, 386

U.S. ZL3 (fgOZ), and because the Circuit Court has a clear duty

to relieve petitioner of these burdens on his clear constitutional

rights, a writ of mandamus or prohibition will 1ie,'insofar as'an

appeal is not available.

WHEREFORE, appellant respectfully requests that the Court

either ( 1 ) grant him rehearing pursuant to RuIe 40, or (2) add the

Statement of Facts, included herein, to its opinion'dismissing his

appeal, pursuant to Rule 59(k) and (3) grant a writ of mandamus or

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prohibitlon requiring the Circuit Court to dismlss the indictments

against appellant and to order him released from custody forth-

with unless civil commitment proceedings are immedlately insti-

tuted against him.

r. STATEMENT OF FACTS

The following statement of the crucial facts and proceedings

in appellant's case is filed pursuant to both A1a. R. Crim. Pro.

39(k) and A1a. R. Crim. Pro. Zt(a), and in order that the Court

may properly ajudicate appellant's application for rehearing

under AIa. R. App. Pro. tO. A fulI statement of facts is partl-

cularly necessary here because appellee's motion to dismj-ss was

granted before appellant had the opportunity to file his brief

on the merits (see this Court's Order of ttay 25, 1981, extendi.ng

the time for filing the court reporter's transcript of the pro-

ceedings for L4O days from May 2L, 1981, thereby moving back the

date on which appellant's brief is due until next Fa1I at the

earliest) and before appellant even received notice of and had

time to respond to appellee'S June 5, 1981 motion to dismiss.

Accordingly, appellant has never before had the opportunity to

present thi.s Court with the crucial facts in his case. Should

the Court deny appellant's application for rehearing, appellant

further requests that the Court add the following Statement of

Facts to its opinion dismissing the appeal, pursuant to the pro-

cedure set forth in A1a. R. App. Pro. 39(k).L/

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L/ Many of the facts
this Court's statement
(e1a. Cr. App. 1980).

discussed in this statement
of facts in Hines v. State,
other facts ffi

are drawn from
38/* So . 2d l- 171

the competency

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Appellant is a 28 year o1d black man who slnce 197O has

repeatedly and consistently been diagnosed as severely retarded.

Indeed, appellant is so retarded that he functions at a level

below that of 99 percent of all of the retarded people in this

country.

In L978, appellant was .indicted on four criminal charges

in Morgan County, Alabama. Later that year, appellant was tried

on one of those charges, rape, in the Cullman County Circuit

Court, to which Court venue had earlier been changed. "In an

atmosphere infected with racial conflict and tension", appellant

was convicted in the Cullman County Court. Hines v. State,

384 So. 2d LL71, LL72 (ela. Crim. App. 1980).

This Court subsequently overturned appellant's conviction on

several grounds, "the most significant" being "the defendant's

mental subnormality as affe.cting the voluntariness and admiss-

ability of his confession. " Id. Basdd on "the totality of

circumstances surrounding Iappellant's alleged] confession" and

particularly on "the defendant's mental deficiency" which this

Court found "to be the most controlling factor of all the circum-

stances", this Court held that statements to the police aI1eged1y

made by appellant and introduced at his trial had been obtained

involuntarily and in violatj-on of his ltltqnqe rights. fd. at

1184. In so holding, this Court found as a fact that appellant's
,,mental deficiency Iis more] extensive" and more "extreme" than in

"any case involvlng mental retardation and the voluntariness

hearing held in the Circuit Court of Jefferson County, Alabama dur-
ing the week of November L7,1980. The reporter's notes from that
hearing, dt which appellant was found by a.jury to be incompetent
to stand trial, have not yet been transcribed. See this Court's

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of a confession" that the Court was able to find after a diligent

search of the case law on the subject in Alabama and elsewhere.

Id. at 1181. This finding, tn turn, was based on the Court's

conclusions (a) that appellant's inteliiget". quotient (I.a.)

lies somewhere in the 3O's range, where 90 to 1LO is normal and

anything below 70 ls retarded, id., (b) that appellant was in-

capable of "know[ing] what a constitution is" and of "understanding

[the Miranda rights form] if you read it ten ti-mes, " and (c) that

appellant is highly "susceptible to suggestion. " Id. at lL76-77 .

On remand, venue in appellant's case was transferred to the

Circuit Court of Jefferson County, Alabama. Upon motion by appe11-

ant, the Circuit Court conducted a hearing before a jury on the

question of appellant's competency to stand triaI. At the hearing,

five mental health professionals testified one for the State

(or. James Thompson) and four for appellant (ors. Robert Estock,

Lloyd Baccus, Al1an Shealy, and David Hook). A11 five of these

professionals, representing both sides of the case and including

the most prominent forensic psychiatrist and psychologist at the

University of Alabama Medical School in Birmingham (Ors. Estock

and Shealy) and one of the most widely respected forensic psycho-

logists in the South (Or. Baccus) agreed that appellant is

extremely retarded, with ; I.Q. in the 3o's range. A11 also

agreed that, wh11e appellant may at some time ln the past have

been psychotic, or mentally "iIIrr as we1l, h€ was assuredly not

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Order of May 25, 1981, extendi-ng the time
reporter's transcript of the proceedings.
cussed herein are undisputed.

for filing the court
AII of the facts dis-

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psychotic or mentally 11I at the time of trial, his only mental

dj-sorder at that time stemming from his severe retardation.

Finally, aI1 five agreed and testified that unlike an "j.llness"

or psychosis, mental retardation is neither curable nor may its

symptoms be treated and even temporarily placed in "remission. "

They testlfied that once a person's brain ce1ls are damaged (as

appellant's apparently have been sj-nce birth), there is simply

no way known to medicine (or like1y to become known in the near

future) in which those ce11s can be made to function or in which

their loss can otherwise be compensated for.

Based on petitioner's extensive retardation, the jury con-

cluded that he was incompetent to stand trial a conclusion

which the State did not appeal. Based on the uncontradicted

testimony of the expert witnesses for both the State and appellant,

moreover, it is also clear that the jury concluded that, due to

the permanence of retardation, Thomas Lee Hines is as competent

(or incompetent) to stand trial now as he will ever be and that

no amount of time spent in a mental institution will make him any

more mentally capable than he now is of standing trial in the

future. In short, the jury concluded that appellant is now, and'

forever will be, incompetent to stand trial. See also Jackson v.

fndiana, 4c^6 U.S. 715 (tgZZ) and State v. Wil1iams, 392 So. 2d

61L (f,a. 1980) in which other courts reached similar 'conclusions

about the permanence of the incompetence to stand trial of persons

whose mental conditions are similar to appellant's.

On November 24, 1980, the Circuit Court of Jefferson County,

Alabama, Judge Charles R. Crowder presiding, entered an order

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acknowlegingthejury.sconclusionthatdefendant..wasincompetent.:

to stand trlal and ordering "that the defendant be and he is

hereby committed to the Alabama State Hospitals where he mus!

remain until such time as he becomes mentally competent tO stand

trial.,, order of November 21, ].98o, dS amended by order of

December 3, 1980 (emphasis added). (copies of these two orders

areattachedtothesepapersasanaddenda.)TheNovember24,

1980 Order (as amended) makes no provision for any change what-

Soever in appellant,s status of confinement in State mental

institutions aside from the possibilitity non:existeht:'in

petitioner,s case that he will "become[] mentally competent

to stand triaI,, in the future. Therefore, because appellant's

incompetence to stand trial stems from his retardatj-on' which is

immutable and permanent, Judge crowder's November 24' 1980 Order

has the unequivocal effect of commi-tting appellant, who is now

2g years oId, to the Alabama stat6 Hospit-als until such time as

hre dies

onDecemberS,lgso,appellantbycounselfi}edtwomotions

with the circuit court, based on the United states supreme court

decision in Jackson v. Indiana, 406 U.S. 715 (L972') ' The titles

of these motions are descriptive of the relief sought: (1) "Amended

Motion to clarify, Alter or Amend the order of November 2/*' 1980'

and to Release Defendant from custody Forthwith unless civil

commitment Proceedings Are Immediately Instituted," and (2)

"Motion to Dismiss the Indictments"' On December 15' 1980'

Judge Crowder denied both motions, and appellant time}y appealed

those deniars. see Notice of Appeal, filed January 23, 1981 '

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i
On May 25, 1980, this Court entered an Order extending the time

for filing the court reporter's transcript of the proceedings

by L1O days from May 2L, 1981. Thereafter, on Friday June 5,

1981, the State filed a Motion to Dismiss Appeal, alleging that

the orders appealed from were not appealable. On Monday

June 8, 1981, the same day that counsel for appellant received

a copy of the Motion to Dismiss in the mail, the Court dismissed

the appeal "on motion by appellee," Order, June 8, 1981.

rI. BRIEF IN SUPPORT OF APPLICATION FOR REHEARING

fn its June 8, 1981 Order, this Court dismissed Thomas Lee

Hines' appeal "on motions by appe11ee." The motion to which the

Court refenred argued, in summary fashion, that "It]his Court has

no jurisdiction over these appeals" because they do not involve

"final orders of conviction." Motion to Dismiss, dt 1. The

State supported this argument with nothing more than a citation

to Code of Alabama 
-$ t2-22-13o and a few cases interpreting that

2/provision.s' The State has therefore entirely misconceived the

nature of the present appeal, and it has wholly ignored the

statutory basis for this Court's jurisdiction to hear that appeal.

As is clear from the following discussion, appellant is appealing

,'If]rom tal final judgment of the circuit court" of Jefferson

County, ir which situation the law of Alabama clearly provides

that "an appeal lies to the appropriate appellate court as a

matter of right" by the aggrieved party. Code of Alabama 1975,

s L2-22-2.

2/ Because the State's Motion
For Appellant received a coPY
opportunity to resPond to the

to Dismiss was granted before counsel
of it, this is Appellant's first
State's Motion.
I

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As a prellmlnary matter, lt is important to emphaslze what

this case does not lnvoIve, for in that way the pecullarly and

uniguely final and irreparable effect of the circult court's

action will then appear. In the first place, this is not a

case ln which a cri-mina1 defendant is appealing a determination

that he is competent to stand trlal. In that far more cornmon

situation, it is clear that the finding of competency is merely

a prelude or temporary way statlon on the road to a trial on the

merits of the criminal charges against the defendant a trial

which by law must speedily occur following the competency determi-

nation. fn that situation, therefore, the finding of competency

has no final or irreparably harmful effect on the defendant, for

he will quickly be tried. If he is acquitted, of course, there

will then be no harm at aII and no need for appellate review. On

the 'other hand, if the competent defendant is convicted, an

appeal to redress that irreparable harm will immediately 1ie to

protect the defendant.

Moreover, this is not even the case of a psychotic, oF

mentally "i11" (as opposed to a mentally "retarded" ) , defendant

who is found to be incompetent. For in that si-tuation, it is

medlcally understood that the defendant, after a temporary and

relatively brief perlod of confinement and treatment, will have

his mental illness cured or placed in "remissioo", through drug

or other therapy, dt which polnt he will be speedily tried and

either acguitted and released or convicted and allowed to appeal

the conviction. Again, ds in the above situation of the defendant

found to be competent, the mentally ill defendant who is found

incompetent is not i-rreparably harmed, since hi.s incompetence and

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ffr,r" his pretrial confinement, is assumed and understood by all

to be temporary, and since there is accordingly no question but

that the defendant will be speedily tried and either acquitted

or convicted in the very near future.

What this case does involve is the unique and rare situation

of a mentally retarded person who has been found to be permanently

incompetent and has been ordered by a court to be confined in a

mental institution "until such time as he becomes competent to

stand triaI" (Order of November 24, 1980), LS., who has been ordered

confined forever. In that peculiarly aggravated situation, the

very same circumstances that militate against finality and irre-

parability in the more usual cases of the defendant who is found

to be competent to stand trial and the defendant who is found to

be incompetent by reason of mental illness, impose a condition of

final and irreparable harm on the defendant who is found to be

incompetent by reason of mental retardation. For in this last-

described category, in which Thomas Lee Hines fal1s, it is clear

(1) that the defendant's incompetence is utterly permanent and

incurable, and (2) that an order (as in this case) involuntarily

confini-ng hlm in a mental institutj.on "untiI such time as he

becomes mentally competent to stand trial" has the final and irre-

pa-rabIe effect of involuntarily confining the defendant to a

state-operated institution forever, since (3) there will never be

a trial ( "speedy" or otherwise) , nor will there ever be either
.3/acquittal and release or conviction and a post-conviction appeal.-

3/ Appellant has not invented this distinction between himself
Ene mentally retarded and thus permanently incompetent defendant
and all other defendants (whether they be competent, or only
temporarily incompetent). Rather, the United States. Supreme Court

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The State has completely ignored the crucial distinction

between, on the one hand, the final and irreparable harm vlsited

upon appellant by the circuit court's permanent and involuntary

commitment of him and, on the other hand, the, 6t worst, tempor-

ary and remediable harm visited upon the more usual defendant

who has been found competent, or only temporarlly incompetent.

However, the law of Alabama is not so bIind. Rather, the law of

Alabama provides that:

J':1,::{ ii:3',3"tfl:":;"::":l:,:'I3;:l,3iE"l";;;'
as a matter of right by either part ... " Code of
Alabama 1975, $ L2-22-2 (emphasis added).

Moreover, the law of Alabama provides that "the test of finality"

1s not a technical or mechanistic standard "and is not controlled

by the fact that the cause remains in fieri, " but instead is a

practical test for whether the decision of the circuit court causes

final and "irreparable injury." 8.9., FaIk v. FaIk, 355 So. 2d

722 (A1a. Civ. App, fgze); Morton v. Chrysler Motors, 353 So. 2d

5O5 (ata. L977); Kimbrough v. Dickinson, 25L AIa. 677, 39 So. 2d

has held that constitutional rights turn on that very distinction -- --rr
Thus, iD Jackson v. Indj.ana, 406 U.S. 7L5 (L972), the Court held
that, although the States may constitutionally order defendants
confined for competency examinations before tria1, and may even
order that temporarily (e.9., mentally iII) defendants who are
found to be incompetent be confined in a mental institution before
trial until they become competent and can be tried, a State may not
constitutionally order that a permanently (i.e., mentally retarded)
defendant who has been found incompetent be confined in a mental
institution "until such time as he becomes competent." As to the
latter defendant, alone, the Court held, either civil commitment
proceedings must be initiated, or the defendant must be released,
and his charges dropped

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21L (1949); Carter v. Mltchell , 225 AIa. 287, 293, L12 So. 5L/*

(rgSZ); Ex parte Elyton Land Co., 1O4 AIa. 88, 91, 15 So. 939

(1893); Adams v. Sayre, 76 AIa. 5O9, 518 (1884). See also

Glllespie v. U. S. Steel Corp. , 379 U.S. L18, L52 ( 1954) ;

Lummus Co. v. Commonwealth OiI Refining Co., 297 F. 2d 80 (2d Cir.

L961); Dunlop v. Ledet's Footliner, 5O9 F. 2d L387, 1389 (Stn Cir.

i.975). fndeed, the Alabama Supreme Court has emphasized that

statutes such as Section t2-22-2, conferring appellate jurisdic-

tion following final orders, "should be 1iberally construed in

favor of a party seeking redress by appea1." In re Coburn,

Lo4 So. 346 (AIa. 1925).

Applying these well-established principles to appellant's

case, it is clear that because the effect of the orders of the

circuit court from which appellant appeals is to confine him

involuntarily to a state mental institution forever unless this

Court acts to relieve that unconstitutional situation (see note 3,

supra), there can be no doubt of irreparability of harm and thus

no doubt of finality and appealability under Section L2-22-2.

Put simply, the orders of the circuit court wi-11 result'in tlre --- -:r
permanent and unconstitutional confinement (see note 3, supra) of

appellant, and, barring relief from this Court, that confinement

will tast until appellant, who is now only 28 years o1d, dies.

A more graphic instance of irreparability and finality can hardly

be imagined.

Because of the rarity of appellant's situation, it h.as never

before been precisely confronted by the courts of this State

However, this very situation of a retarded criminal defendant

L2



who has been found incompetent to stand trial and has been ordered

confined "until competerlt", i.e., forever -- has been faced by

the courts in various of Alabama's sister states. The courts that

have confronted this question, moreover, have concluded that the

"criminal commitment" order in such a situation, albeit in some

senses a "pretrial" order in a criminal case, is nonetheless j-n

practical effect a "final" and thus appealable "order" under "final
judgment" rules identical to that set forth in Code of Alabama L975,

S tz-zz-zz

"[A]s the defendant's mental disturbance may
be of long duration, perhaps for life, and his
trial may therefore be delayed over a long time,
and perhaps forever, the order adjudging him
incompetent for trial has a phase of finality
in it. "

People v. Fields, 62 Ca1. 2d 538, 399 P. 2d 369, 37O (CaI. 1965),

cert. denied , 382 U. S . 858 ( 1965 ) ; accord, Higgi.ns v. United States ,

2O5 F. 2d 650, 652 (gth Cir. 1953); State v. Wi11iams, 363 So. 2d

/*1L (La. 1978); State v. Burrows, 198 So. 2d 393, 396 (ta. L967);

State v. Yaun, L1O So. 2d 573 (t a. 1959); Jolley v. State, 384

A. 2d 91 (ua. 1978); Commonwealth v. Ragone, L76 A. /*54 (pa. 1935).

The general rule of appealability under the final order rule is

laid out in Annot., Appealability of Pretrial Orders or Rulings in

Criminal Cases as to Accused's Mental Competency, 16 A.L.R. 3d 7O8,

7ts (1s6s ) .

As these decisions uniformly recog-nize, although pretrial

orders in criminal cases are typically not final and only become

appealable following a judgment of conviction, see Code of Alabama

1975, $ L2-22-L3O, ln the rare cj-rcumstance of a defendant found

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permanently lncompetent, and committed to a mental instltution

"until competeot", finality attaches before conviction, parti-

cularly since no conviction wiIl likely ever occur.

fn view of the above Iaw, which the State so studlously

avoided discussing in its Motion to Dismiss, it is clear that

rehearing should be granted under A1a. R. App. Pro. 10 and appellant

should be allowed to appeal under Code of Alabama 1975, S L2-22-2.!/

ITI. BRIEF IN SUPPORT OF PETITION FOR A WRIT

For the reasons set forth in the preceding section of this

brief, appellant ("petltioner", in this section) believes that he

has a clear right to appeal the circuit court's denials of his

motions to dismiss his indictments and to'release him if civil

commitment proceedings are not inj-tiated immediately. Nonetheless,

if this Court should conclude that petitioner has no appellate

remedy, pleti.t1.onei'.wootd theri be :without'-an'-*ad=Ofi"a..-'tega1

remedy" to cure the "defects i-n justice and [to] prevent [the]

lrreparable injury" visited upon him by the lower court's rulings.

Ex parte Weissinger, 22 So. 2d,51O, 515 (AIa. 1945). In that

situation, mandamus clearly 1ies, id., and petitioner respectfully

requests that if the Court concludes that there is no appellate

jurisdiction over this matter, it issue a writ of mandamus (or, if

approprlate, a writ of prohibition) directing the circuit court

/*/ fnsofar as AIa. R. App. Pro. 27(b), rather than Rule 40, is
the proper basis for the relief requested herein, appellant moves
under that RuIe.



to dlsmlss petitloner's indictments and to reLease petitioner

unless civil commitment proceedings are commenced immediately.

'Under Alabama Iaw, the prerequisites for a, writ of man-

damus are well established. First, "the Jurisdiction of the

court must be duly invoked by proper petition. " Ex Parte

Brannon, 139 So. 2d 319, 35O (AIa. Civ. App. 1962). Second,

"there must not be any other adequate remedy open to petitioner,"

and, in particular, there must be no adequate appellate remedy,

id., see Ex parte Welssinger, 22 So. 2d,51O, 515 (AIa. 1945);

Ex parte Hennies, 31 So. 2d L7, 19 (A1a. Civ. App. L9/.7). Third,

there must be "a clear legal right in the petj-tioner to the order

sought," which is "irreparabl[y]" or "undu[fy] injurIed]" by

action of the respondent (in this case, Judge Crowder). Titl e

Guaranty Fundlng Corp. v. Bolling, 260 So. 2d 589, 597 (AIa. 1972);

Ex parte Brannon, 139 So. 2d 3/*9, 35O (AIa. Clv. App. 1962) ; Ex

parte Garrison, 260 AIa. 37g, 7L So. 2d,33 (1954). Fina11y, there

must be a "duty upon the resondent in the petition for mandamus

to perform which he has refused to do. " Ex parte Brannon,

139 So. 2d 349; 35O (eIa. Cir. App. 1962).

A11 of these prerequisites are either clearly met here, or

would be clearly met lf this Court dismisses petitioner's appeal.

Thus, petltioner has by way of this petitlon duly invoked the

jurisdiction of this Court to issue a writ of mandamus. Moreover,

lf this Court finds that no appellate remedy is available, "there

is no other lega1 remedy" available to petitioner besides mandamus.

Ex palte weissinger, 22 So. 2d 51O, 515 (eIa. 1945).

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Further, petltioner has a crystal clear right

this case that is enforceable through mandamus. In

to relief in

Jackson v.

15



Indiana, 1OO U.S. 7LS (L972), discussed in note 3, supra, the

Supreme Court of the United States held that a criminal defendant

who had been found incompetent to stand trial, whose mental condi-

tion was unlikely to changg and who therefore was unlikely to

become competent in the "near futurg" has the right to have the

charges against him dropped and has the right to be released

from a state mental institution immediately, unless civil commit-

ment proceedings with all of their attendant due process and

"right to treatment" protections are immediately commenced

against him. Id. at 733, 738. The Supreme Court expressly appli-'

ed this holding to the retarded defendant involved in that case.

See id. at 718-19. In addition, Klopfer v. North Carollna, 386

U.S. 213 (fg0Z) stands for the proposition that petitioner's

lndefinite confinement pending a criminal trial that will assuredly

not occur in the "near future" violates his constitutional right to

a speedy tria1.

The clear constltutional rights discussed in Jackson and

Klopfer have been recog:nized, since those decisions were announced,

by the Unj-ted States Court of Appeals for the Fifth Circuit, €.9. , 
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United States v. Wood, 469 F. 2d 676 (Stfr Cir. L972), as well as

by many state courts. E.9., State v. Williams, 392 So. 2d 64L,

643 (La. 19BO); Garrett v. State, 39o So. 2d,95,96 (FIa. 1980);

State v. wi'l1iams, 363 So. 2d 4/.L (1,a. 1978); q@,

318 So. 2d 856, 858 (t"tiss. 1975).

In additi.on, there is no doubting that Judge Crowder's

orders and subsequent inaction have subjected petitioner to

"irreparable injury" and "undue harm", and that a failure to prO-

vide some relief will result in "a failure of justice." Guaranty

16



Funding Corp. v. Bollino, 260 So. 2d 589, 597 (AIa. L972); Ex parte

Garrison, 260 A1a. 379, 7L So. 2d 33 (1954). In these circumstances,

barring an appeal, mandamus is particularly appropriate. Id.

Final1y, Judge Crowder has clearly abrogated his duty under

the Constitution by falling to order the relief requested by

petitioner. After the jury. found petltioner incompetent to stand

tria1, Judge Crowder entered an order committing petitioner to a

state mental institution "until such time as he becomes mentally

competent to stand trial." Order of November 21, L98O, amended

Order of December 3, 1980. (Both Orders are attached to this

petition as an addendum. ) Thereafter, petitioner filed two motions

which pointed out to the court, first, that the effect of his order, ---

in combination with petitioner's permanent retardation and thus

his permanent incompetency, was to commit peti-tioner to a mental

institutj-on for life without any due process, without any showing

that he i-s dangerous, and without ?ny assurance'that he will

receive the treatment he needs, and second, that such an order

unequivocally violates the constitutlonal principles set forth

in Jackson v. fndiana, supra, and Klopfer v. North Carolina, supra

(The two motions filed by petitioner are reproduced in the adden-

dum to this petition. ) Nonetheless, havJ.ng been clearly confronted

with his constitutional duty to act to amend his November 24, 1980

order and to release petitioner unless civl1 commitment proceedings

are initiated, the lower court simply deni.ed petitioner's motions

without any explanation at all. The Court gave no indicatlon that

petiti-oner could or would ever have his confinement status altered

unless he -- miraculously and contrary to all medical expectations

was cured of the damage to his brain that has rendered him severely

L7



mentally retarded since birth. In short, there has not only been

an "abuse of discretion," on Judge Crowder's part, whlch clearly

justifies rnandamus under Alabama law, see State v. Cannon, 369

So. 2d 32 (AIa. L979), but there has also unequivocally been "a

refusal to act on the part of" Judge Crowder and a refusal "to
perform his lconstitutional] duty," Ex parte Brannon, 139 So. 2d

319, 35o (AIa. Civ. App. L962). rn these circumstances, if an

appellate remedy is not available, then mandamus will lie to re-

lease petitioner of the "undue injury" which Judge Crowder's

refusals to act have caused petitioner and will continue to cause

hj-m for the rest of his life unless this Court exercises its juris-

diction. Indeed, the Supreme Court of Alabama has utilized the

mandamus procedure in pretrial crimj-nal matters strikingly similar

to the present one. 8.g., EX partq Garrett, 76 So. 2d 681 (Ala.

1ss4).

Accordingly, if this Court does not reinstate petitj-oner's

appeal, it must issue a wri.t of mandamus (or prohibition) ordering

Judge Crowder to dismiss the indictments against petitioner and

to release him unless civil commitment proceedings are immediately --: ._I

initiated agalnst hlm. See State v. Wil1iams, 392 So. 2d 611

(La. 1980). It bears emphasis that if this Court denj-es petitioner

relj-ef be lt by way of an appeal or by *-y Jf a writ of mandamus

this Court w111 by that act also be depriving petitioner of his

constitutional rights under Jackson v. fndiana, supra, and Klopfer v.

North Carolina, supra, since it will be acquiescing in, and pre-

venting petitioner from redressing, the irreparable injury that

occurs every day that his unlawful involuntary confinement continues.

18



WHEREFORE, appellant respectfully requests that the Court

either ( 1 ) grant hlm rehearing pursuant to Rule 10, or (2) add

the Statement of Facts, included hereln, to lts opinlon dismissing

his appeal, pursuant to Rule 39(k) and (3) grant a writ of mandamus

or prohibition reguiring the Circuit Court to dismiss the indictments

against appellant and to order him released from custody forthwith

unless civil commitment proceedings are immediately instituted

against him.

submi-tted,

ELATNE R. JONES
BRENT SIMMONS

Suite 94O
806 L5th Street,.N.W.
Washington, D.C.' 2OOO5

JACK GREENBERG
JAMES S. LIEBMAN

Suite 2O3O
10 Columbus Circle
New York, New York 1OOL9

DEMETRIUS C. NEWTON
L722-2121 Building
2L2L North Eighth. Avenue
Birmingham, Alabama 35203

OSCAR W. ADAMS, IIT
|6OO-212L Building
2L2L North Eighth Avenue
Bi-rmingham, Alabama

-_- -I

Attorneys for Appel lant-Peti tioner

Respectful-1y

ES S. LIE

19



CERTIFICATE OF SERVICE

r certlfy that I have served a copy of the foregoing on

the appellee and respondent by mailing copies to them, postage

prepaid, addressed as follows:

The Hon. Charles R. Crowder
Circult Judge, Tenth Judicial Circult
Jefferson CountY Courthouse
Birmingham, Alabama 35263

Ed Carnes
Assistant Attorney General
25O Administrative Building
61 North Union Street
Montgom€ry, Alabama 36130

C. Burton Dunn
Deputy District AttorneY
Tenth Judicial Circuit of Alabama
Room 61O Courthouse
Birmingham, Alabama 35263

This 22nd day of June, 1981

- _- '-il



t
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'l
Whereos thc defendant, .Thornas Lee Hines. Is presenily being

. . confined In the phyciatrie unir of the univcrsrty of atafama Hosprtal in
'f Bilmingham, Jefferson county, atauarn.a,:and Is charged uf hai"tm"nt rrom' Morgan county, Alabarna, wrth the oficnic of rapc. ,, n"i o..n assertcd by

counsel foc defendant thet due to mentaidisease and defect he is presenuy
i

1 mentally ineompctent to stand triat on the chacge. on Novernbec l?, 19g0,' .1a jury was duty scrected in this.courtlto dccidc urc issue Jf ,n" 
"o.p","n",of this defcndant. Aftec both thc staie. of Alaboma ona tn" defendanr had

.put 
on evidence before the jury in iupport of their ccspective prositions in

the case, said jury on November zq rseo, found that tire defendant was

. 
presently mentauy ircornpctcnt to stund trial on said charge. tn accordance
with that vedict this court finds that the defendant is pcesently menta[y
incompetent to stand trial :

It b ORDERED AND OeCn'EeO that the defehdant be and he is

. hereby eommitted to the Arabama Siate Hospital for the rnsane where he

rnust re.main until such timc as hc beiomes mentauy eompetent to stsnd
trial when thd Superintendent of the Siate Hospital snau be of the opinion
that thc defendant is rc restoceo, n" ri"u forthwitli in'writing infocrn this
court and the sherirf of Jefferson cqunty, Alabama 

"rtrn., ,"",, 
-rrn"ruu*n

the defendant shall be remanded to ihe custody.of the sheriff of Jeffe]son
county on order of this. couct. In no event shall the defendant be set at
large rc long as such prosieutron is jenoing or so long as ire continues to be

mentally incompctent to stand trial .t
I

Thc Sheriff of Jefferson C.orrnty, Alabama, is heceby directed to
trarufer and deliver the defendant.io it," custody of the Atabarna state
Hospital for the Insone in cornpliance with this order. i

. . TEN'rH JUDICIAL CIITCUIT

sr^l.rf'ot, At.itnAMA. (.

vs.

THOtIIAS LEE tttNES atier
TOMMY LEE HINES

t

rN Trili ciltc( couR,n,

TUrnt JUUICIAL Ctrcurr
Of ALAUAMA

cnrMtNAd DrvtstoN

"^,,*ffilZ? ::llxyrii
.t

.i
. ra

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STATE OF

vs.

AIISAI{A

HINES a1lae
HINES

TIIOMAS
. TOMMY

LEE
LEE

IN TltE CIRCUIT COURT,

TENIIT JUDICIAL CIRCUIT

OF AI.ABAUA

CRIMINAL DIVISION

CASE NO: CC80001890, CC79000455
cc79000467, cc79000465

AI,IENDED ORDER

Whereas the defendant, Ttromas Lee Hines, is presenEly

betng confined in the phyciaEric. unlt of rhe University of Alabama

llospltal in Birningham,. Jefferson Councy, Alabana, and is charged

by lndicUoenE froo l.iorgan Counc,y, Alabaea, wiEh the offense of rape.

ft has been asserted by cotrnsel {or defendanE that due Eo mental

disease aod d,efect he is presenEly mentally incourpetent to stand

trial on the charge. 0nNovember L7,1980, a jury was duly selected

in this court.to decide the issue of che competency of chis defendanE.

After boch the SEaEe .of Alabama and. the defendanE had put on evidence

before the jury in support of their respective positions in the case,
..!.

said jury on November 2L,1980, found that the defendant was presentlv

aentally incocpetent to siand trial on srid charge. In accordance

with that verdict tiis courc find,s that the defendant is presencly

mentally incoopetenc Eo stand trial
It is oRDERED AND DECREED persuanr ro Tirle 15-15-21

Code of Alabanra 1975 that, the defendanE be and he is hereby cotirniEted

to the Alabaoa State Hospicals.where he must renain until such time

as he becomes urentally compeEenE Eo stand crial . l"'tren the Superin-

Eer-denE or- the Stac.e Hospical .shal1 be of the opinion Ehat the <iefenia

.i's so restored, he shal1 forthwith in writing info:m Ehis courc and

the Sheriff of Jefferson CounEy, Alaba.roa, of thaE facE,'.'hereupon the

defendar,t shall be rersanded to the custody of che Sheriff of Jeffers.-r,

Ccunty orr order of th!.s Couri,. In no ei'aii shall. the tiefenrlairr i.e

set et large so long as such Drosecution 1s penciing or so lonE: as he

iL'n:ia!'es to be -rtnta.ll.r, i:,c.c::'rt..ii 'o . '.,:,i "'l .1.

--r



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'lbr\

Ihe Sherlff of Jefferson County, Alaba.oa, Ls hcreby

dlrecEed Eo transfer and dellver the dcfendant Eo the custody of
thc Alabarna Stat,e Hospitalp ln conpliance wlEh th{.s order.

CIRCUIT JIIDGE
IENTTI JUDICIAI. CIRCUIT

Doue and ordered thls 3rd day of December, 1980.



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'li3 Lr,: - o l ii lt lj1

IN IHi CIRCUIT COURT OF

'^,[tP..il,S.'ffr0,,JEFFERSON COUNIY, ALA.TAUA

iai
..4 . .:a

ItG.

,n9

STAIE OF lr.aaAliu{, t '
I

Plalntllf, r cAsE NUITBERS

va. r cc 80-1980
cc 79-00465

.TEOMAS 
LEE HTNES, ' CC 79-00465

cc 79-00467
Defendant,. t

MOTTON TO DISI,IISS 3HE TNDICTI.IENTS

Comes.now the defendant Thomas Lee Eines and

, moves this honorable cqurt. to dismiss the indictments
t

pending against hirn in the above-numbered cases. In

support of this motion, the defendant would show unto

the. court the following: . .

. 1. On November 2\, 1980, a special jury en-

paneled by this court for:nd defendant incompetent to stand

trial 6n the charges pending against him.

2. fr, .f."f"on v. Indiana, 405 U.S. 7I5 (Lg72),

. the Supreme Court of the United States held that when

. a defendant is found mentally incompetent to stand tria1,

and when the evidenqe relied on to establish incompetency

also establishes that the defendant is not substantially

Likely to become competent in the foreseeable future, the

. State'is reguired by the Constitution to "release the

- .,_defend"3ts'..from a1I custody forthwith unless a "civil com-

fd. at 725, 727, 739.

3. At the competency hearing recently held in

.;;. defendant's case'which involved a.one-week'jury trial,
.i l- 

-.'. : .- j

. substantial and uncontrddicted evidence rra.s adduced from

i both prosecution and defense experts the defendant is

7l'

--- -I

currently functloning at "his best" possible level in-
tellecb:a1Ly;' emotionally and socially; that his psychosis

is now in remission leaving his mental retardation as the

sole cause of his inablllty to stand trial. The uncon-

tridicted evidence further showed that mental retardation



I

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tpacdy trLal, duo procesg and cgual protactlon as guarantecd

by tho Slxth and Fourtoenth Amcndmants of tho Constitution

Respccttully subsrlited, ;!

-:v

oscAR !{. ADArs, IIr' 1600 - 2L2L Building
" . 2121 North Eightsh Avenue

Birmlngharn, Alabama 35203
:

EI.AINE R. JONES
BRENT SIMMONS

Suite 940
,l 806 - 15th street, N.w.' Washington, D.C. 20005

JACK.GREENBERG
JAUES S. LTEB}IAN

Suite 2030
-; 1.0 Columbus Circle

New York,, Nee, York 1001-9

ATTORNEYS FOR DEFENDAT{T

CERTIFICATE OF SERVICE

2121 North
Birmingham,

BuiIding
Eighth Avenue
Alabama 35203

I hereby certify. that r have this 8*- day of 
-

December, -1980, served a copy of the foregoin_o motion on

counsel for alj parties to thi-s. proceeding by United staces

mail, postage prepaid.

-_- -I



D

t

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'8i/ lrii !,, Ail li ,r';

:.
rLtu lr 0iri.:i

ISLLr CUXn.'.UL Ctthr:

Jl"
IN TE CIRCIIII COT'xuI OE i

JESTERSON ClClnflnr, ALABA!{c-.t
I

,{

sTJ|tE oa AraBA.l,IA, ..
I
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CISE NT]I'{BERS

I cc eo-rgeo
i cc zg-ooaes

cc 79-00465
i cc 79-00467

;

Ita

vlt.

rEOt,tAS I.EE ENES,
;

,

Lastituted.

The defendant

of this moti.on.

PlalntLff,
' .a,. -

Defendant.

. 
AHENDED

)

)

)

)

)

I'ro(troN To craRrna,-.ILTER oR A-I'(END TEE
oRDEB OP NO\/EMBER 24, 1980, AIID TO RE-
LEASE DEFENDAITB PRO}I CUSTODY TORTEI.TITE

ITNT.ESS CrVrL COMI{ITME.YI PROCEEDINGS

t.

I

Comes nor.r the defendant. Thooas Lee Eines by eounsel

and ooves this Court for'an order clarifying, altering or
-.. , i

aoendlng its Order of Noveobet 24, 1980 l(as amended), and
-'..i

releasiug defendant froq the custody oflthe State of Alabarna

-' ..' :

forthnith unless civil gooraitment proceedings are imnediately

ARE IMMEDIATELY TNSTIflITED

. :.'
!;, '_-

: . ,l
: 't-

lists 'th;
'a..:

followilrg grounds in support
-_- _-I

1. oa Nove-l,er 2L, 'iggo, a special jury empaneled by
l.:'.: :'ttris Court found defendaot incoopetent to stand trial on the
| .!:\ i-'': I

charges pendiog against hiP.' i
' ir: I

2. Oa Noveober 24,.I98O, this Court entered an order
.:. : ,l:....,.. 

I
.i ' . t . -' (slnce aneoded on DeceobeE:'?r 1980) comrgitting defendant

' t '".. 1' ... .l

indefinltely to the sustody of "the Alabalqa State Eospitat
' 

". a 
- :

rrrrtil such tLme as he be&aes mentally coropetent to stand

trial, - and forbiddlng those confining defendant froo setting
: . ... .

''t



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larga 'so long aa spcb proseertlon ls pcndLng or

hn contlnue! to b"t..
,I

Ioentally ineoopetenE to stand
t'

' 3. fa .Taekson v. fndiana, 406

Supreme Court of the Unlted. States unanipously held rthat
, t-''*' 

I

a'person charged, by a State wlth a crirniiral offense sho

. 
Ls c.omnl.tted [to a State .oe1!al facility] on account of his

.t

lficapacity to proceed to t;1a1, " and vho, because of ,,raental
:

deficiencyr' Ls not subst'antially likelyl to ,atitain that
' capacity in the foreseeabt6'future," canlot constitutionally

:;' ;

be confined il a state mental facility based on.nothing more
i

than the finding of incompetenry to staah Erial. rd. at 723-i-
I

39. Such confinement, thehe .Supreoe Courtl held, violates both,

his at

loag as

trLal. r

tbe Egual Protection and Dt19 Proiess Clauses of the Four-':.-.1
teeoth Amendrient to the gnlt'ea Stat,es Constltutlon.r r i..-.. 

i

4. ilackson v. Indiana'.holds that urhen a defendant is
II

found nentally incorupetent to stand trial, and, when the evi-

deace relied on to establish'incompeteac.i also establishes. :..':.i,. I
that tbe defendant is not'substantially lilcely to become

neotally cooperent * ra".!.rrlal in Ehefro..r"".ole furure,
: 'i " 

rl
.the State ls reguired by the. Constitution to .re1ease the

'l
defenda-t" froor all custody"fortlruith unless a ,customary

I,'.'.:".i
. ei..vil, commituent,proceediyrg"- has been orlis inmediately insti-

' tuted. ...I9. at 725, 727? 739.;' No such civll'corcraitment

procee4inS hag been lnstitgtg_d ia tbis case.
i:r'n,... 'l ';.;.i'f : l
.' 'r "' 5. At Ebe corrpetene'y.'.p,loceediag relently held in

..-i,-. ,i' defendaatrs case, substantial and uncontradicted evidence nag
,:i'; .l

adduced froru both prosecutioi ar,a aee"nJl o<perts establishing

:'-z



I

tf

a

't

r.
!t

!

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rhrt defcndant ls cr.rrraatly frurctlonlng it "hls beat, po!!l-t.'.
'b1a lcvel LstclIectualIy, eootionalfy 

""J 
soclilly, becauas

1!,1 r Ihlr paychosl.r 1r aon Ln remlsslon, leavlq'g hla aental retar-:.1
datloa as thc sole eausG of,r hls lnabillty to stand trial.:,.'..,1
Thc eeidencc at the cropetency proceedlng also unegulvocally'.;l
deaonstrated, as tt dld Lu Jackson, that Lenta1 retardation

is Lncura.ble and that the Leirel o]-rrra"r.rlectuaf functioning
I
I

of, retarded, persons can neegf improve, alt,hough it nay.': 
ldeteriorate over tiae. Slnce; as thei,jurl, foun{, defendantts

. a_

prgseat 'best" cond.ition is.iot sound enough for .hin consti-

tutionally to be forced to stand trial, and because there is

no chance that, his oental cbndition and 1evel of intellectual
....j 

,,.1
functioning will J.mprove in the foreseeable future, substan-

;

tiar and uncontradicted eltidence acduced tv both sides in the
'";-

,.recent coopetencry hearing demonstrates that there is no like-
. :.i..: !

I.ihood at alJ., much less a';,,rlhstantial liielihood, that
.i .; - t

defendant will becoure.competent in the .foleseeable future.
: .:':: I' 6. AlJ. of the expert wiLesses in the recent proceeding
| - "':'-,' I

who addressed ttre issue direetly testifieh, without contra-
'i- l':: i

dlctl-on froro aay other witness, that defendani alEost assuredly

,irt not becooe courpereoa I;.li.".rd rrlal |.r, al" foresieable. :-':.--
. ,t- I

future. . i -..,.
' .'l- t-..

. !;

.l,i
froo custody fdrthtrith unleis'civLl commLtment proceedings are

.::
I

i

7. Under Jackson v. In4iana, because the evidence at the
'; 't.i' 

irecest competency.heariug established that defendant is: .-, : .ri_. 
: Ipresently incompetent to 'stand trlal and. is sr:bstantially
.t

unltkely to becroe competeni:llo st.nd a=r"Lr iu the foresee-

."ble future, Lt ls defendarit',p right under the lourteenth
,i .:-'- ':..,.., t .

tuendnen! to the United Stites Constitutiin to be released

I
.a

--- 
-I



.f./. \(

i

;

t
. .l*dlec.ly hrrltur.d, .ad rhr Bivcdrr 24, l;so,J;rdcr (ie racadrd)
.'.i ' ,' '. : i',r" . I"^' vloletrr tbrG rltbt. 't,:..'.i'i'.' . I.,..r-.1

t. r1tlr 15-16-21 Co& o! lLlebenr, !975, rrlolrcrr. rhc defeodaaltr rlghca

uodrr rh. Coulrlrutloo of rb. totld; SEecar. Tltlt f5-16-21, Codr of al:baor,
I

1975r fu r.ocoostlducloaal. l1clr 'U-16-21, vrotectr rhc dcfandea!rc rlghts

"..i 

;

uadcr thc Fllsh, SLxtb, Zlghth qgd'?ourtecoth Aoeudcars to lhG Coost{tuclon

of the lraltcd Statcc of .Aaarlcr. .t'. i
" .;.i i

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I

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..: L722 - 2l2l! Bu11d1uB
'. 2l2l North Elghrh Avcnue

. 
Blrolnthao,'Alabaoa 35203

'.' . . oscAR I{. ADAI''S, III
l50O - 2l2L'Bul1dIng
2121 North Elghrh Avenue
llrrnl.ughaa,! A1abaoa 35203

.. EI.AINE R. JONES
BRENT SI}CIONS

SuLtc 940
' .:. . 806 15ch srrect, N.IJ.
. lJashlogtoor'D. C. 20005

: .i .JACK GREENBERC

' JAHES S. LIIBHAN
SuLtc 2030

' l0 Cohsbtrs Clrclc
Nen fork, l{es York 10019

ATTOBNEYS FOR DEEE}IDA}IT

CERTIFICI,TE OF SER'ITCT 
. 

.

-i

' r bereby ceirtlfy that r trave rtu.s elghtb day of Dccerber, 19g0, served
i:: i !' '.::. !

. 
r coPy o! Bhc lorogolng troEloq on'couneel for ell parcler Eo Eh16 prccaed{:rg

by :r.'.:l.iC -r:b:s: :,-,:lir i- ;. ... . j

-_- -_-I

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TO* LFE HnrES )

Apprltrot, .- -.

va.

SIAIE 0F ALAlAltfA.

'81 Jllt( ' lrl:t ao

^. f[.tU tx?f li-l
r-rJtLt Ulrra;i;..Ui. CU ni(

) ru THE CIRCITI! COURT OF')
) JETFERSOil @mtTY, AI.ABAHA
)
)
)
) cAsE No: 80-1890
) z9-00465

Appc11rc. ) t9-00466
) t94o46t

ilOTICE OF APPEAI TO TTIE COURT
OF CRIHINAL APPEAI.S OF ALASAilA

Noctc. 1a hcrcby glvcn that pursuaoc 1boony I:c Elncis, appeala to thG

abovc-aaud Cour! froo thc deolal of chc denlal of chc folloulng notlong enrered

Lo thcsc carca oo Deceober 15, l98o by thc clrcul.t court of Jefferson cotmcy: '

l. Dcfcndant'g lueoded Hotloo to clarlfy, Alrcr, or Aoend che ordcr of Nover

bcr 24r 1980, (as aoeaded oo Deceobcr 3, 1980), and co Re_lease Defeodanc froa

Custody. !orthwlth lJuless Clrrll CoooltErenc.Procecdiags are T*edtately Instltuced;

and

2. llotloa to Disnlss che Indlccnents.

Ihc rulLngs of the t.rial court deoylng che above rcclons froo r,rhich rulings

Defendaac hereby appeals constlcute 1ega1 error and are contrary to chc verdlct of,

and che cwldence adduced before, the.Jury eopanelred on Noveober l7; I98o uhlch

Jury declded unaoloously on Noveober 21, 1980 thac Defendanc is lncoopetenE co scaod

Erlal.

Flled January 23, 1981.

DeEecrlus C. Neston
L722 - 212l Building
212l North Etghth Avenue
Blrulnghao, Alabaua 35203
c2o5) 2s2-92O3

oscAR I{. ADAMS, III
1600 - 2l2t Butldtng
2121 North Elgh.th Avenuc
ELrnlnghan, Alabana 35203
c205) 324-4445

gl.AINE'8. JONES
ERENT SI}EiONS
Sulta 940
806 lsth SErGat N.!J.
lleshlngton, D.C. 20005

- -- 
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JACr ctEEt{tEnc
JAlct g. LE!!{AI{
Ssltr 2030
t0 Colrdut Clrctr
llrr tott, lhv tot*, 10019

ATTOE|ETS DO8, DEIEilDrtrr ,.



a

]

TUE ST TE OF AITB HA _ JUDICI{L DEpARTyEm

rUE ALA8AXA COURT OT CRI}IIIIAL APPEALS

:? Undrr thc provlslonr o! Rular 2(b) end 11(e), AMP, lhc Court of

CrlnlneJ. Appeals hcreby extendr thc Bfuoe for llltng EhG court rtport.rt!

tr.ntcrl.pt of che procacdlngs ln cach of thc foIloulng appcalr as shoutr:

JEITERSON CIRCUIT COT'RT

'4- 6 Dlv. 573 Ttrooas Ler Elncs v. Stata (/lcclg-0o465, 466, 167
& CC-80-01890) 140 days f.roa S|ZL|EL

:

It 1c further ordered tha! thc cloe' for flllng !,he record by Che

clarlc of thc'trlal court be extended for sevcn (7) days froa lhe explra!1on

o( thG cxEeoalou herel.nabova granced or thc soonar ll}lng of cha courc rePorter'a

ErrurcrlpC of Chc proceodlngs in chc offlca or at. clrcuLt clcrk In each of the

eborrc.eppeals. .

IJITIIESS' Ho1llc Jordrn, Clcrk of rhc

Court of Crlulnrl Appcels Ehls 25t}

dey o! Hry, 1981.

\MrnSA^Ba^.
CLERK, COURT OF CRIHINAL APPEALS OF AITEAYA

,.

-_- .__I

'r."r*i



a

t

t'.
t
!
I

TOI,IMY LEE

v.
. 

STATE OF

HINES,

Appcllant,

ALAEAMA,

Appel 1ee.

I

IN TIIE COURT OP CNII{I}TAL APPEALS

OP AI.ABAIIA

Nos. 79-200455
79-200\66
79'?OO\67
80-01890

i'IOTION TO DISI.IISS APPEAL

The Statc of Alabanra, as appellee, moves thls Honorable

Court to dlsmlss the appeal 1n the above-styled cases, and as

grounds for thls motton shows as follows:

1. ltrls Court's appellate Jurlsdlctlon exEends only to

flnal orders of convlctlon 1n crlmLnal cases. Code of

Alabama 1975, S12-22-130i see, Harrls v. State, 44 Ara. App.

632,2L8 So. 2d 285; McKlnlby v. Ftorrls, 280 Ala. App. 408,

194 So. 2d 565; Esters v. State, l4 Ala. App. 383, 308 So. 2d

7 \2.

2. The appeals atternptcd 1n these cases are not from

f1nal orders of convlctlon.

3. Thls Court has no Jurtsdlctton over these appeals.

4. Slnce tnfs Court has no Jurlsdlctton over these

appeals, they should.be dlsnlssed now 3o t'hat the SEaUe rr1ll

not be requlred to unnecessarlly spend thousands of dollars 1n

publlc funds for preparallon of transcrlpts.

---- -I



a

ir

a:

e,

ln{.E}tEFoRE, for
thls Honorable Court

thegc reasona, thc State

rtlsrnlsg t,hese appeals.

requects that

the

h1s

Respectfully subml !tett,

Y. evrr4vrt

ASSISTANT DISTRICT ATTORNEI
COUNTY CIRCUITJEFFEBSON

CERTIFICATE OF SERVICE

f cerLlfy thaE I have scrvcd a copy of the foregolng on

appellant by r.rall1ng a copy, postage prepald, adciressed to
attorney as follows:

Honorable Demltruls Newton
\722 2l2I Bu1ld1ng
8th Avenue North
Blrmlngharn, Alabama 3SZO3

Done thls rtre 5{( day of June, I9gf.

ADDRESS OF COUNSEL:

Asslstant Attorney General Ed
250 Adnlnlstrattve BulL!1ng
64 North Unlon Streec
l,lontgomery, Alabama 35I30

ASSISTANT ATTONNEY OENENAL

Carnes

OENERAL

ASSI.STAN? AITORNEY CENENAL

c-



)t

t RE: Clrcui! Ct. ,CC-79-00465,466t461 & CC 8f01890
Court of Crlolnrl Apgerlr 16 Dlv. 573

eatL
THE STATE OF ALABA},IA...JUDICIAL DEPARTMENT

THE COUNT OF CRIMTNAL APPEALS OF ALABAMA

Ocfu,betTltm, r9-q0-91

To thc C1;ak o! the Cil,r.cl/t Court ,o! _.-_Jrotg!!- Courrty, Grcctirgz

Vfl*tcer, the Rccotil and Prccccdiag ol thc Ci:,anit Cotrc.ot said Conaty, irr c certeia ccu.lc

lat.ly pald,hg itr la,id, Cotrt bctroccn

TITOHAS LEE BI}IES Apptlbat--,

rAE STATE ., Appclbc-,

rohcrcia by rcid Court,

adoersely to said, appellant.*, u)erc btought belote our Cowt ol Cri:rrri:rral Appeoh, by appeal taken,

pttsuatt to bu, on beholl o/ scid appclio,at_

Nou., it is herebg certilid, That it lulrrs thetelrpon considereil by ortr Cortrt of Cnrrrinal Appeak,

* 11.- 8th ilog o!.-- Jto" 

----19 

81 , 

--_.---

-0!L-I{OII0US 

FY AITELLEE--- _that the sotil appeal

be and staad dirrnissed,' offijoec@odE3.+6r.or.crlcEn cglq6rcg<ttlaeqpr{brry

=l:

it uror consUercd

- -_I

pogrii-+----*ff"r-'-idcofry(eco{l,gttdrorErrExrbirpGhI)(B!4BAnrX-

Ifitacss, Mollia Jotdcn, Clak of thc Court

of Crirniaal Appccb ol Alobar*a,6t thc Ccpitol,

RECEIVED JUN I .I X(I