Memorandum in Brief of Respondents in Reply to Petitioner's Brief in Support of Motion for Summary Judgment

    IN THE UNITED STATES DISTRICT COIJRT

POP TEE MIDDIE DISTRICT OF AIABAMA
NORTHERN DIVISlON

MAGGIE B0zEI{AN,

Peti t i oner

vs.

EALCN l'1. LAMBERT, €t 81.,

ResPondents

CIVII ACTION
No. 8r-H-579-H

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Petitioner argues her convtetion should be set ast'le

because she was convicted under a tlefective inclictment'

Petitioner basieally claios the indictment was

rend.e:ed d.efeetive by the trial court's iury

instructions, i.e., the trial court conrniited error in

instructing the jury as it did. Petitioner also contends

the jury instructions erroneously subjected petitioner to

"strict IiabilitY."
At the end of the trial eourt's charge to the Jury,

defense counsel nad.e nc objection to the court's

instruetions. (n. 20s)



A proper objection to the charge woulcl have been to

object on the grounds that it was error for the trial

court to instruct the Jury as lt did ancl to cite the

grounds therefor which petitioner now raises in her

habeas petition.
under Alaba.ua procedural Iaw, petitioner eould have

obJeetetl at the end of the courtrs charge and citect as

grounds the matters raised here.

rhls roulcl have given the trial court an opportunity

to take correetive action if indeed the grounds were

neritorious. And, asguning an atlverse ruling, P€titioner

would have been able to preeent these claios to the

Alabama appellate courts.

Eowever, sinee petitioner nade nc objection to the

trial eourt's jury charge, the grounds raised here'were

waived for purposes cf direct appeal- in state court'

By not objecting, petitioner has by-passed the state

forum in rhich these grounds eould have and should have

been litigateC . lloreover , Petitioner uould have been ln ' ,..

a position to assert these grounds in a petition for srit | - 1-
: <i ,;

of certiorari to the U.S. Suprene Court. Knersel v. Egan, )-'t -c'-
z'1- . -

258 u.s. 442 (1925). r\-
).



Alabarna lar ts very clear that in order to preserve

for review alleged errors in a trial court's oral charge,

a defendant nust object, point out to the trial court the

allegectly erroneous portions of the charge, antl assign

specific grounds as to uhy the tlefendant believes there

r,as error. Brazel] v. State, 425 So.Zd, 523 (lfa. Crin.

App. 1 982 ).
Failure to make sufficient objection to preserve an

a11eged1y erroneous iury instruction waives the alleged

error for purposes of appellate revier. Hill v. state,

409 So.2d 94, (era. Crin. App. 1981 ).
objection is waivecl unless natle before

Showers v. State, 4O7 So.2d 159, 17?

since petitioner nade no objection to the trial

court's oral- charge, p€titioner failed to cornply rith

Alabama procedural Ian on this point. lherefore, the

petition is due to be ttenie<l on all assertions concerning

the trial court's oral charge unless petitioner can show

cause for failure to objeet and actual prejudice

resulting fron the charge. Yainwright v. sykes, 411 U.S.

72 (1917).

!!oreover, the

the Jury retires.
(lra. 1981 ).



Petitioner then is left here rith her challenge to

the sufficiency of the inlictment nade in her pretrial

notion whieh challenged the indictment as being vague and

overbroacl . (n. 218-220)

It rras only upon the language of the indletnent that

the Alaba.ma court of criminal Appeals ruletl on its

sufficiency and held the indictnent was sufficient.

sufficiency of a state indictnoent is not a matter

for federal habeas corpus rellef unless it ean be shown

that the indictment is so defective that the eonvleting

court had no juriscliction. Branch v. Estelle, 611 F.2d

12Zg (5th Cir. 1980). 0r, stated another raX, petitioner

nustshorthatunclernocircunstancegcouldavalicl
eonviction result fron facts provable und.er the

indictnent. Johnson v. 3ste11e, 7O4 F.2a. 232 (5ti, Cir'

lq8j): cramer v' lahner, 581 F'2d 1376 (zttr cir' 1982);

Knewel v. E€e4, 258 U.S. 442 11925)'

Thus,sincepetitionerhasnotshorneausefor
failure to object to the trial court's instruetions, and

sinee the indictnent was elearly sufficient to confer

juriscliction on the state trial court to try petitioner



for sunularY Judgment

petitlon te due to be

for vtolattng Alabana code t9?5, $ 17-25-1, the notton

to be denied, and the

on these tssues.

RespectfullY subnttted'

v.ftrlllltDv n. vrrr

ATTORITIY GENERAI

is due

denleti

ASSISTATT ATTORtrEY GETERAI

SSISTANT AITOR}TEY GENERA],



c ERr r F r c $ E_q -S-E-BY.!E

I hereby certlfy that on this Z4th tlay of f'ebruar,,

lgE4,IdtdserveacopyoftheforeSoinsontheattorney
for Petitloner, Yanzetta Penn Durant, 619 ltlartha street'

Irlontgonery, Alabana ,5108, bX hand delivery'

ASSISTATT ATIORIEY GENERA],

ATTORNEY CENERAI