Beecher v. Alabama Petition for a Writ of Certiorari to the Supreme Court of Alabama

    ̂ cX

IN THE
SUPREME ’COURT OF THE UNITED STATES 

OCTOBER TERM, 1971 
NO. II- Ip M l

JOHNNY DANIEL BEECHER,
Petitioner,

STATE OF ALABAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE SUPREME COURT OF ALABAMA

JACK GREENBERG 
JAMES M. NABRIT, III 
JACK HIMMELSTEIN 
LYNN JONES. WALKER 
ELAINE R. JONES

10 Columbus Circle
New York, New York 10019

ANTHONY G. AMSTERDAM
Stanford University Law School 
Stanford, California 94305

OSCAR W. ADAMS, JR.
U. W. CLEMON

1630 Fourth Avenue North 
Birmingham, Alabama 35203

Attorneys for Petitioner



INDEX

Opinion Below .................................
Jurisdiction ..................................
Questions Presented ...........................
Constitutional and Statutory Provisions Involved 
Statement .................... ..........

A. Statement of the Circumstances Surrounding
Petitioner's confession ............. .........

B. Statement Respecting Petitioner's Witherspoon
Contention ...................................

How The Federal Questions Were Raised and Decided
Belov/.......... '.....................................
A. The Confession Issues ........................
B. The Witherspoon Issue ........................

Reasons for Granting the Writ ........................
I. Certiorari Should Be Granted To Determine 

Whether the Confession Used To Convict 
Petitioner Was Obtained Under Inherently 
Coercive Circumstances, In Violation Of 
Kls Fourteenth Amendment Rights.............
A. On the Totality of the Circumstances

of This Case, Petitioner's Confession 
Was Not Voluntary.......................

B. Petitioner's Confession Cannot Be 
Sustained as Voluntary upon this 
Record Because the Courts Belov/
Failed to Make An Adequate Inquiry 
Concerning the Effects of the Dosage
of Morphine Administered to Petitioner...

II. Certiorari Should Be Granted To Determine 
Whether An Indigent Capital Defendant's 
Challenge Under Witherspoon v. Illinois,
391 UoS. 510 (1968) To Selection Of His 
Trial Jury can Be Rejected On The Basis 
Of The Trial Judge's And Prosecutor's 
Post-Trial Declarations That No Witherspoon 
Error Occurred, Without Providing A Tran­
script of The Voir Dire Or Showing That Such 
A Transcript Cannot Be Provided...........
A. The Remand Hearing ...................
B. The Inadequacy Of The Record .........
C. The Right to a Transcript of the

Voir Dire.............................

Page
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37

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Conclusion 44



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TABLE OF CASES

Ashcraft v. Tennessee, 322 U.S. 143 (1944)............
Beecher v. Alabama, 389 U.S. 35 (1967)................

15,16,
Beecher v. State, __Ala.__, 256 So. 2d 154 (1971)......
Billingsley v. State, __Ala.__, 254 So. 2d 33(1971)....
Boulden v. Holman, 394 U.S. 478 (1969)..... ............
Boykin v. Alabama, 395 U.S. 238 (1969).................
Bram v. United States, 168 U.S. 532 (1879).............
Brown v. Commonwealth, 212 Va. 515, 184 S.E. 2d 786(1971) 
Butler v. State, 285 Ala. 387, 232 So. 2d 631 (1970)...
Carnley v. Cochran, 369 U.S. 506 (1962)...............
Chambers v. Florida, 309 U.S. 227 (1940)..............
Clewis v. Texas, 386 U.S. 707 (1967)..................
Culombe v. Connecticut, 367 U.S. 568 (1961)...........
Dannelly v. State, 254 So. 2d 434 (Ala. Ct. Crim. App.)

cert, denied, 254 .So. 2d 443 (Ala. 1971)...........
Darwin v. Connecticut, 391 U.S. 346 (1968)............
David v. State, 453 S.W. 2d 172 (Tex. Ct. Crim.App.

1970) ................. ........................
Davis v. Henderson, 330 F. Supp. 797 (W.D.La. 1971).... 
Davis v. North Carolina, 384 U.S. 737 (1966)..........
Draper v. Washington, 372 U.S. 487 (1963).............
Duplessis v. Louisiana, 403 U.S. 946 (1971)...........
Edwards v. State, __Ala.__, 253 So. 2d 513 (1971).....
Entsminger v. Iowa, 386 U.S. 748 (1967)...............
Eskridge v. Washington State Board, 357 U.S. 214 (1958) 
Evans v. State, 430 S.W. 2d 502(Tex.Ct.Crim.App. 1968).
Ex parte Bryan, 434 S. W. 2d 123 (Tex. Ct. Crim.App.

1968) ..........................................
Funicello v. New Jersey, 403 U.S. 948 (1971)..........
Gardner v. California, 393 U.S. 367 (1969)...'.........
Grider v. State, 468 S.W. 2d 393(Tex. Ct. Crim.App.

1971) .............................;.. ...........
Griffin v,. Illinois, 351 U.S. 12 (1956)...............
Hackathorn v. Decker, 438 F. 2d 1363 (5th Cir.1971) . . . .
Haynes v. Washington, 373 U.S. 503 (1963).............
Herron v. State, __Tenn.__, 456 S.W. 2d 873 (1970)....
In Re Anderson and Saterfield, 69 Cal. 2d 613, 73

Cal. Rptr. 21, 446 P. 2d 117 (1968)................
In Re Cameron, 67 Cal. Rptr. 529, __Cal. 2d __,

439 P. 2d 633 (1968) ................................
Jackson v. Beto, 428 F. 2d 1054 (5th Cir. 1970).......
Jackson v. Denno, 378 U.S. 368 (1964).................
Jenkins v. Delaware, 395 U.S. 213 (1969)..............
Johnson v. Avery, 393 U.S. 483 (1969).................
Joseph v. State, 442 S.W. 2d 123 (Tex. Ct. Crim. App.

1969) ..........................................

Page

16
3,5,
2 4 ;
40,43 ' 
34,40 
14,32,:
33,38J39 
24 
35 
37

36

I

39
18, 21 
19
15,24

29
19,20
37
37
16,17,1 
20,31 ' 
38,39^
41.42
38
33
42
38.42
37.40
37.42
37.41
38.42
37
42
37
17,18
37

35
24
37
24
20
42
37

31

11



I*.v.vw iw m s;t v *v <t' -ju."\ :x '\ ,v r  r j i i .w v i • 'j v r q » i i 'T
r

Page
Ladetto v. Massachusetts, 403 U.S. 947 (1971) ........  38
Ladetto v. Commonwealth,356 Mass. 541, 254 N.E. 2d 415

j (1969)..............................................
!| Lane v. Brown, 372 U.S. 477 (1963)....................
j! Lego v. Twomey, 30 L. ed. 2d 618 (1972)...............
;! Leyra v. Denno, 347 U.S. 556 (1954)...................
|l Liddell v. State, __ Ala.__, 251 So. 2d 601 (1971)
i! Logner v. North Carolina, 260 F. Supp. 970 (M.D. N.C.
[I 1966).................................... ..........
Lokos v. State, 284 Ala. 53, 221 So. 2d 689 (1969)....

jj Long v. District Court of Iowa, 385 U.S. 192 (1966)...
'! Lynum v. Illinois, 372 U.S. 528 (1963)................
, »
ij Marion v. Beto, 434 F. 2d 29 (5th Cir. 1971) cert.

denied, 402 U.S. 906 (1971)........................
| Mathis v. Alabama, 403 U.S. 948 (1971)................
j Mathis v. New Jersey, 403 U.S. 946 (1971).............
Mathis v. State, 283 Ala. 303, 216 So. 2d 286 (1968)...

| Maxwell v. Bishop, 398 U.S. 262 (1970)................
Ij Mayer v. City of Chicago, 30 L.Ed. 2d 372 (1971)......
i| Miranda v. Arizona, 384 U.S. 436 (1966)...............

42
25,30,$ 1 
21
33,34

37
39,42
15

I
41

13,32,33,37,41
43 i37 j
32,36 ! 
41,42 
20

; Pate v. Holman, 341 F. 2d 764 (5th Cir. 1965).........
. Pate v. Robinson, 383 U.S. 375 (1966).................
i! Payne v. Arkansas, 356 U.S. 560 (1958)................
j| Payton v. United States, 222 F. 2d 794 (D.C. Cir. 1955) . 
' People v. Floyd, 1 Cal. 2d 694, 82 Cal. Rptr. 608,

464 P. 2d 64 (1970)................................
Ij People v. Sears, 70 A.C. 485, 74 Ca] . Rptr. 872, 450
j P. 2d 248 (1969)....................................
I Pilkington v. State, 46 Ala. App. 716, 248 So. 2d 755
i (1971)...............................................
c Pinkney v. State, Cir. Ct. Palm Beach, Crim. No. 2490 
Ij (July 17, 1971).....................................i I
•j Reck v. Pate, 367 U.S. 433 (1961).....................

Reddish v. State, 167 So. 2d 858 (Fla. 1964)..........
jj Reid v. State, 478 P. 2d 988 (Okla. Ct. Cr. App. 1970).
j1 Richardson v. State, 247 So. 2d 296 (Fla. 1971).......
ij Robinson v. Tennessee, 392 U.S. 666 (1968)............
ij Rogers v. Richmond, 365 U.S. 534 (1961)...............
j Rouse v. State, 222 So. 2d 145 (Miss. 1969)...........

43
28
18, 21 
17
35
35
33
37
15,16 
24 
37 
37
19,23
19,30 ,j 34 
37

i Seibold v. State, __Ala.__, 253 So. 2d 302 (1970).....
Sims v. Georgia, 385 U.S. 538 (1967)..................
Spencer v. Beto,398 F. 2d 500 (5th Cir. 1968).........
State v. Forcella and Funicello, 52 N.J. 238, 245 A.

2d 20 (1968)........................................
| State v. Graffam, 202 La. 869 (1943)..................
j State v. Hudson, 253 La. 992, 221 So. 2d 484 (1969)....

State v. Mathis, 52 N.J. 238, 245 A. 2d 20 (1968).....
State v. Pinkney, Cir. Ct. of Palm Beach, Fla.,

: i Crim. No. 2490 (July 9, 1971).......................
.j Swain v. Alabama, 380 U.S. 202 (1965)..................
') Swain v. State, 285 Ala. 387, 232 So. 2d 631 (1970)....i' ‘
I1 Tea v. State, 453 S. W. 2d 179 (Tex. Ct. Crim.App. 1970)
| Townsend v. Sain, 372 U.S. 293 (1963).................
ij Townsend v. Twomey/152 F. 2d 350 (7th Cir. 1972)......

37
17,19,
37,42

23

37 
24
38 
43

35
37

20,24,25,
30
37

li
i i i I

I



■ ■ . ■- ■' - - . .-J -. - . - '- ■* .  '-r rV - m’'* * > - v

Page
United States ex rel. Weston v. Sigler, 308 F. 2d 946

(5th Cir. 1962)....................................  40,42
United States v. Robinson, 439 F. 2d 553 (D.C. Cir!l970) 24*
Wilson v. Florida, 403 U.S. 947 (1971)..........  3 8
Wilson v. State, 225 So. 2d 321 (Fla. 1969).!!!].’.*!!]]]] 38
Witherspoon v. Illinois, 391 U.S. 510 (1968)........ ]]]

2,4,10,i3,14,32,33,34,35 
36,37,38,39,40,41,43

i Statutes:
Title 30, Ala. Code 1940 (Recompiled 1958), § 57 
Title 15, Ala. Code 1940 (Recompiled 1958) § 382
Other Authorities:
Beaver, The Analgesic Effects of Morphine and Methadone,

8 CLINICAL PHARMACOLOGY AND THERAPEUTICS 415 (Mav-June 1967)...........................................
B.BECKMAN, PHARMACOLOGY 226 (1961) ....!!!!!!!!!!!]]]]]]]
Comment, "Admissibility of Confessions and Denials Made 

Under the Influence of Drugs," 52 N.W.L.Rev. 666,(1957)....................... .................. [
L. GOODMAN and A. GILMAN, THE PHARMACOLOGICAL BASIS OF 

THERAPEUTICS 239-240 (3d Ed. 1965).................
A. GROLLMAN and E. GROLLMAN, PHARMACOLOGY AND THERA­

PEUTICS (7th Ed. 1970)............................
J. LEWIS, AN INTRODUCTION TO PHARMACOLOGY, 392 (3rd*Ed! 1964)..............................
A. REYNOLDS and L. RANDALL, MORPHINE AND ALLIED DRUGS 21 (1957).................... .....................
Smith, .Subjective Effects of Heroin and Morphine’in’ 

Normal Subjects, 136 Journal of Pharmacology and 
Experimental Therapeutics 47 (1962)................

T. SOLLMAN, A MANUAL OF PEJARMACOLOGY 293 (8th Ed]*i964)

2,32 
1, 4

23
21

22
21
22
23
21,23

23
23

IV

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'  T ' N » .  > . « <  . » . T * r  T  - - »  . - .  -  : s  it... . d. tS*'.***--.- X 'UJ\,

IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1971 

No.

w
Ii

JOHNNY DANIEL BEECHER,

Petitioner,
v .

STATE OF ALABAMA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE

SUPREME COURT OF ALABAMA

Petitioner prays that a writ of certiorari issue to review 
the judgment of the Supreme Court of Alabama, entered in this 
cause on December 9, 1971, rehearing of which was denied on
January 13, 1972.

Opinion Below
The opinions of the Supreme Court of Alabama affirming 

petitioner's murder conviction and death sentence, together 
with the dissenting opinion of chief Justice Heflin joined by 
Justice Lawson, are reported at __Ala. 256 So. 2d 154 (1972). !
They are set forth in the Appendix [hereinafter referred to j
as A.--], infra, pp. la-18a. j

|
Jurisdiction

The judgment of the Supreme Court of Alabama was entered 
on December 9. 197!. and a motion for rehearrng was denied on 
January 13. 1972. Pending filing and disposition of this petition 
for writ of oertrorari, the Alabama Supreme Court on January 18. 
1972. stayed execution of petitioner's death sentence.

I



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The jurisdiction of this Court is invoked pursuant to 28 j
i

U.S.C. § 1257(3), petitioner having asserted below and asserting 
here deprivation of rights secured by the Constitution of the 
United States.

Questions Presented

I* whether petitioner's confession was involuntary and its 
introduction into evidence violated his rights under the Four-

j

teenth Amendment.

II* Whether petitioner's confession, following the adminis- i 
tration of 1/2 grain of morphine, could properly be held voluntary 
in the absenceof evidence that the drug exerted no influence on 
petitioner's will.

III. Whether, following a remand to determine compliance 
with Witherspoon v. Illinois, 391 u.S. 510 (1968), the Alabama
Supreme Court erred in affirming this indigent petitioner's death:i
sentence upon a record containing only the prosecutor's and the ! 
trial judge's statement that no veniremen were excused for scruplies, 
where the voir dire transcript was neither produced nor shown to j 
be unavailable.

CONSTITUTIONAL AND STATUTORY PROVISIONS 
____________INVOLVED

This case involves the Fifth, Sixth and Fourteenth Amend­
ments to the United States Constitution.

It further involves Title 30 , Ala. Code 1940 (Recompiled 
1958), § 57:

On the trial for any offense which may 
be punished capitally, or by imprisonment 
in the penitentiary, it is a good cause of 
challenge by the state that the person has 
a fixed opinion against capital or penftentiary, 
punishments, or thinks that a conviction should 
not be had on circumstantial evidence; which 
cause of challenge may be proved by the oath 
of the person, or by other evidence.

-  2



STATEMENT
I

This case is here for a second time. Petitioner, an 
indigent Black man, was originally, in September 1964, convicted !
and sentenced to death for the murder of a white woman This

«
Court reversed that conviction and sentence of death on the 
ground that a confession introduced in evidence against petitioned 
was "the product of gross coercion," there having been no "break j 
an the stream of events" from petitioner's initial oral confessioiji

I
to his confession five days later while "still in pain, under thej 
influence of drugs, and at the complete mercy of the prison j
hospital authorities." Beecher v. A labama, 389 U.S. 35, 38 (1967)| .

I*
The opinion sets forth the following facts based on petitioner's 
testimony.

I
"The uncontradicted facts of the record are I
these. Tennessee police officers saw petitioner 
as he fled into an open field and fired a bullet 
into his right leg. He fell, and the local Chief \ 
of Police pressed a loaded gun to his face while 
another officer pointed a rifle against the side 
of his head. The Police Chief asked him whether 
he had raped and killed a white woman. When he 
said that he had not, the Chief called him a liar 
and said, 'if you don't tell the truth I am going j 
to kill you.’ The other officer then fired his 
rifle next to the petitioner's ear, and the 
petitioner immediately confessed. Later the same 
day he received an injection to ease the pain in 
his leg. He signed something the Chief of Police 
described as 'extradition papers' after the officers 
told him that it would be best . . .  to sign the 
papers ̂ before the gang of people came there and \
^itlod him. He was then taken by ambulance from 
Tennessee to the Kilby Prison in Montgomery, Alabama. 
By June 22, the petitioner's right leg, which was 
later amputated, had become so swollen and his 
wound so painful that he required an injection of 
morphine every four hours. Less than an hour after1 
one of these injections, two Alabama investigators 
visited him in the prison hospital. The medical 
assistant in charge told the petitioner to'cooperatd' 
and, in the petitioner's presence, he asked the in-, 
vestigators to tell him if petitioner did not 'tell 
them what they wanted to know.' The medical assistant 
then left the petitioner alone with the State's in­
vestigators. In the course of a 90-minute'conversa- 
tion, the investigators prepared two detailed state­
ments similar to the confession the petitioner had I 
given five days earlier at gunpoint in Tennessee.
Still in a 'kind of slumber* from his last morphine j 
injection, feverish, and in intense pain, the peti- ! 
tioner signed the written confession thus prepared 
for him." Beecher v. Alabama, 289 U.S. 35, 36-37 '
(1967) -3- ’ i



»• '■* , .-. » ... -:r -• •- V r ;-*i> . :#> •' a  f -  ..’• ‘

on January 26. 1968 petitioner was re-indicted by a 
' JaCkS°n County-Alabama Grand Jury on one count of murder.(Trial 

Record.in Transcript on Appeal before the Supreme Court of Alabama
[hereinafter cited as R. l.pp. 1-2.) petitioner was indigent
and counsel was appointed rrVir> trial ,PFujnvea. The trial occurred the following
February 4-5, 1969.

«
Petitioner's confession was again the major piece of 

evidence upon which petitioner was convicted and sentenced j
to death in a brief jury trial.~

An automatic appeal pursuant to Ala. Code 1940 (Recompiled ! 1 9 5 8 ) .  Tit. 15.  § 382 (1) followed. m  the Supremo Court of Ala- ! 
bama. petitioner was represented by appointed counsel. (R. 9 .) !
On October 7.  1971.  that court 1) remanded the case to the trial | 
court for hearing to determine the state of the record with regard! 
to a claim arising under Witherspoon v . Illinois 391 u . s .  510 I( 1 9 6 8 ) ,  and 2) rejected each of petitioner's other federal consti-j 
tutional claims. (A. la-16a.) After the hearing on remand, the j 
Alabama Supreme Court on December .9, 1971 affirmed the conviction | 
and sentence of death. (A. 17a-18a.) Petitioner's timely motion 
for rehearing was denied on January 13, 1 9 7 2 .
unpagina ted ̂ in1 Record^J^Therea f ter a°Januaryk 2 7^1968 inthe°c^Sel#'
o?Up t i S ^  menta 1  ̂ xaminati on
z s s ^ i s - i f  ~ : r s .  a„di

for change of venue to Cherokee Tr C 10-2w T  " m°ti0n

ttea]u^?nSCriPt reflects ^  than forty pages of testimony

~ 4 -



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A. Statement of the Circumstances Surrounding Petitioner's 
Confession.
At the retrial, the prosecution sought to escape the 

impact of this Court's earlier decision in Beecher I in two 
ways. First, it presented the testimony of the Tennessee Police 
Chief who took petitioner's initial confession. Second, it intro­
duced into evidence,not petitioner's initial oral statement to

Ii

the Police Chief nor his written confession given five days later j 
which this Court invalidated in Beecher I, but an intervening 
statement made by petitioner to a Tennessee doctor. The facts
at the retrial were as follows: IjIOn the morning of June 15, 1964, petitioner, a 31-year-old | 
Black convict previously convicted of rape and serving a sentence ; 
at Camp Scotsboro near Hollywood, Alabama, escaped from a convict 1i
road gang. (R. 228-231.) The camp was located approximately 8/10's 
of a mile from the home of Mrs. Martha Chisenall. (R. 231.) Mrs. 
Chisenall's dead body was found by a police search party on June 
16, between 9:30 and 10:00 a.m., some distance from her home.
(R. 235-236.) 1

Petitioner was captured on June 17 at approximately 5:00 
a.m. in South Pittsburgh, Tennessee, by Tennessee police officers >
who had been alerted by Alabama authorities to be on the lookout 

! for him in their vicinity. (R. 265-267.) A search party or "mob," 
to use the expression of South Pittsburgh Police Chief Burroughs, 
had come up from Alabama and had been hunting for petitioner in 
the border area most of the day; but they had returned to Alabama 
prior to petitioner's capture, while the Tennesse Police continued
the search. (R. 267.) ;

i

5



Police Chief Burroughs first spotted petitioner walking on1 ■
| a railroad track. (R. 267.) Petitioner jumped from the track 
j and fled into a field. (R. 268.) The Chief shouted to petitioner

I
, to halt and, when he did not, told one of his officers to shoot
I • «petitioner. (R. at 268.)
i' "So, I told this officer to shoot him, 

stop him which I told them all not to 
shoot to kill. We didn't know whether 
it would be the right one or not. In 
other words, I didn't want to shoot 
somebody to stop them and maybe it was 
some small crime a running . . . .
(R. 268.) •

The officer then fired his rifle at petitioner who fell to the 
ground and was still (R. 268), his leg almost blown off. (R.276,I '

, 317). The officers approached him where he lay, the one with his
rifle, the Chief with drawn gun. (R. 268.) Petitioner was silent' 
and motionless. (R. 268.)

I, Within the span of the next 60 minutes, petitioner is said
to have "confessed" his crime twice, once to Police Chief 
Burroughs and once, shortly thereafter, to the Tennessee doctor 
to whom the arresting officers took petitioner for emergency i
treatment before transporting him back to Alabama.

The evidence as to what happened in the field is now the
! | subject of conflicting testimony. At the retrial, petitioner
testified substantially as he had at the first trial: he was
cut down by a rifle bullet while running through the field (R. |

i289); he was in "extreme pain" with the "bone . . . out of the
leg" (R. 290); the Chief came over and said "This is the one 
we are hunting. . . Why did you kill that white woman?"; the
Chief put his pistol on petitioner's nose, while the officer 
who shot him had his rifle against petitioner's shoulder, fired 
into the ground by petitioner's ear (R. 289), and, in petitioner's

'' words, "asked me did I believe that he would kill me." (R. 299.) i!i I| I :Petitioner further testified that he was scared, and that the I

!

Chief asked him:
6

III



• • *<\ \' v*v* **-*-■* "-i1 '»*
ji

"’Did you kill her?’ and I said, ’Yes, I killed her.’ 
. . . And he said, ‘How many times you raped her?'
and I said, 'Twice -- I raped her twice.'“
(R. 291.)

I

I

Police Chief Burroughs, however, now contradicted petitioner 
testimony in some respects. He said that after he approached i
petitioner, found him still and observed no weapon in petitioner'^

,  |
hands, the Chief stuck his gun back into his holster while the j
other officer kept his rifle out. The two of them eased peti- I
tioner up to be sure that he had no concealed weapons. (R. 268- 
269, 309.) The officer, standing somewhat more than two or i
three feet from petitioner, did then fire his rifle into the jI
ground twice -- but only as a signal to summon the rest of the 
search party. Nothing was said to petitioner, however, when 
these shots were fired. (R. 309-310.) The Chief asked petitioner 
his name and petitioner answered, "Johnny Beecher." (R. 269.) I
The Chief asked, "Are you the man they are hunting in Alabama?"

s

! to which petitioner replied with this full confession: "Yes, I 
, am . . .  i raped and killed this woman. I know I have to give

I
a life by taking one, but please don’t let that mob get me." i
(R. 269.) Petitioner"kept repeating,'Don't let the mob get me,'"'1

j and the Chief said, You are under arrest. I will put you under 
arrest and it is my job to protect you and I will." (r . 269.) Ij
A truck was then driven into the field, and petitioner was put j
on the flat back and transported to the nearby hospital at

i‘ 3/ j
South Pittsburgh for treatment. (R. 269-270.) According to the, i
Chief, at no time did he or his officers threaten petitioner •

Il■ " i
2S Petitioner testified upon voir dire examination out of the 
jury's presence that he was "slung up" on the truck by the 
officers and that he had to hold on to a chain on the back of 
it to keep from rolling off in transit. (R. 291.) He stated 
that when he arrived at the hospital, the officers were "fixing 
to throw . . .[him] off on the ground" until the people from the
hospital stopped them. (R. 291-292.) The Police Chief denied 
that petitioner had to hold on to any chain to keep from rolling off the truck. (R. 307-308.)

7



-v *■ v;-.-'*v v * • -  v . * » ’k-j r:?-.'* V*~

the Chief did not put his gun in petitioner's face and saw no 
one else do so. (R. 269-270.)

Petitioner's confession in the field was not presented
! ito the jury, as the trial court explained, "because of the ruling 1l
of the United States Supreme Court." (R. 271.) Rather, it was 
an ensuing statement, made within the hour to the physician who 
treated petitioner at the local hospital, which the jury heard.

I
This physician, Doctor Headrick, testified on voir dire

ithat he first saw petitioner in the emergency room approximately 
15 minutes after petitioner had been wounded on June 17. (R. 276, 
279-) Petitioner "had a gunshot wound of the leg and the tibia 
was shattered . . . ." (R. 276.) The leg "was practically shot

i
off and Beecher was experiencing great pain." (R. 317.) He was j 
in a great deal of pain. (R. 279-280.) The doctor gave him iItwo shots of morphine, each 1/4 of a grain, one intravenously

|
and one muscularly, to ease his pain. (R. 278.) The doctor then ;
began to give petitioner "first aid" (R. 319), consisting of
cleansing, packing and wrapping the wound so that he could be
transported. (R. 276.) i

"[H]e was going to be transported to 
Kilby Prison, that was the word that was 
given to me. I was not to take him to the 
operating room and to start to work on the 
leg." (R. 281.)

During "most of [the] . . . conversation" when petitioner
made the incriminating statements to Dr. Headrick, only Dr.
Headrick and his nurse were with petitioner (R. 277); but accord­
ing to the doctor, "[tjhere were policemen all over the place"
(R. 280), including in the hall and at the door" (R. 279); and 
the doctor could "hear all sorts of voices as many policemen 
were concerned." (R. 281.)

-  8 -

I



Dr. Headrick testified that he gave the petitioner food
because "he hadn't eaten in some time" (R. at 281), and water
and cigarettes. (R. 277.) He did not make any threats or
promises to petitioner and was not asked to question petitioner
by the police. (R. 277.) The doctor at first could not remember
if he asked petitioner any specific questions about Mrs.
Chisenall's murder before petitioner started telling him
(R. 277, 281), although he recalled asking petitioner "why did
he do it." (R. 281.) Testifying before the jury, he was clear:

"Q [by the prosecuting attorney]. Was a statement 
you made -- did you -- you didn't ask him any 
questions to get him to make the statement, did 
you?"
A. As I remember I asked him why he did it.
Q. Prior to that time, did he make a statement 
of what he did?
A. No, sir. " (R. 315.)

Petitioner then (as described by Dr. Headrick to the jury):
"started off by more or less telling me his life 
history, the fact his mother had died when he was 
young and his father left the family and he had 
always had a hard time even existing as far as 
food and what not was concerned. Then, he said 
that he had seen this lady on her front porch 
on several occasions . . . .  He said he made up 
his mind he was going to get some of that no 
matter what it cost him and then he told me he 
raped her three times . . . .  He said he did 
not want to kill her but they were in a little 
cove or thicket and she wouldn't quit screaming.
He had to kill her because there were people 
coming up the mountain." (R. 316.)

Concerning the effect of the morphine administered to peti­
tioner, the doctor stated in response to the Court's inquiry that 
"morphine will relieve pain and make a patient have a feeling of 
well being," but that it wouldn't affect mental capacity "unless 
you get a tremendous overdose where it suppresses respiration

-  9  -



• &*+sanv ss " -»nr*« ■.■■an’rys ■ sf: wv*.v',v-Murom* .. . ** '■<> ■/• ■ ";•>*»> 1 ' * '.< <•'■*'«■- *y/i

j| or ^kes them unconscious ." (R. 278.) In the doctor's opinion, 
ji ^titioner knew "what he was talking about, " knew "the meaning" 
jj of what he was saying and "realized it." (R. 278.) The dosage 

of morphine was not large enough to completely relieve allI j
ji Petitioner's pain, particularly if petitioner moved. (R. 278-
'' 280.)
!i

Petitioner testified that the pain from the wound was 
j, extreme, as "the bone was out of the leg" (R. 295), and he was 
very afraid. (R. 294.) He could remember only receiving one 

, shot. (R. 293.) The drug put him "at ease." "it kindly [sic]
>' made me feel like I wanted to love somebody, you know, took the 
pain awaV and made me feel relaxed." (R. 296.) Petitioner could 

j: n°t remember what he said or how he acted after receiving the 
morphine. (R. 301-304.) He "didn't have control of [his].

| mind" after the injection. (R. 302.)* , i'!i The record is clear that petitioner was not offered an
attorney, advised by anyone of his right to have an attorney, 
or told that he need not make any statement. (R. 295.) At some 
point while at the hospital, apparently after being treated, !

i ' i
petitioner "signed to come back" to Alabama (R. 272, 294). He >

j
was returned to Kilby Prison by ambulance the same morning. .j
(R. 272, 291.)

l' |
j

ji B. Statement Respecting Petitioner's Witherspoon Contention. j
jBecause the voir dire examination of petitioner's jury 

venire was not transcribed or made a part of the trial record 
on the automatic appeal, the Supreme Court of Alabama remanded ! 
to the trial court, on October 7, 1971, noting "that the record

!
does not contain a transcript of the proceedings when the jury

|

-  1 0  -

;•* y



,.* ^r^yjy^^'firh. W fM *n* v ^ \ x  -rjo ^ v w v / ^ v ^ u ^

venire was qualified.Therefore we are unable to determine whether 1
l

the jury which convicted Beecher was constitutionally selected." j 
, (A- 10a*) 0n the remand,the trial court was directed to determine!
j whether any jurors were challenged because of their affirmative *
I :
I answers to a general question as to a fixed opinion against

. 5 capital punishment . . . ." (a . 11a )
ii i

The remand hearing was held on October 21, 1971, before the
trial court, the Circuit Court of Cherokee County, Alabama.
(TranscriPt of Remand Hearing [hereinafter cited as Remand Tr. ], '

ji P ‘ 6 *̂  Petitioner's original court-appointed counsel appeared
for him and asked for a continuance to allow petitioner to
contact counsel of his own choosing." (Remand Tr. 8-11.) The

II court denied the motion. (Remand Tr. 11.) Thereafter, testimony
'.was taken and proceedings were conducted as described at pp. 34-36,1 
j'infra. !
11l HOW THE FEDERAL QUESTIONS WERE RAISED i
I _  AND DECIDED BET.OW 'r — ---------------------  !
I, A. The Confession Issues:l!

Defense counsel objected at trial to the admission of 
petitioner's statement. (R. 310-311, 315.) The trial judge over­
ruled the objections, concluding that the statement was "voluntary .j "

’ | I
!■ Referring to this Court's earlier decision, he ruled:

"Their only purpose in making that decision 
i; and the only decision they could legally make
j was whether or not at that time that confession

down at Kilby Prison when he was questioned by 
, a State Investigator or Detective under the j

conditions he was questioned under was admissible.
They held it wasn't and then they made another I
statement which was not necessary about the i
decision about the breaking of the chain of 
events and even if it were a part of the decision 
which was substantial, now that there is contra­
diction in the evidence as to what happened there I
at that time there their decision could very well j

different because they had a one sided case at that time." (R. 287.)
I think there is a great distinction between i

the confession that is contained [sic] in the 
penitentiary by a State detective and a voluntary

-  11 -

!



■ \ r v  • v  «'-■ W  - t v  V * » * » * V >  ‘wx- •--''.V, “ J '  , ' T V ' K V x V :

statement which is made by a man to a doctor without 
questioning, without any association with the State 
and without any showing that it was done at the 
instigation of the State. . . ." (r . 3 H.)

in his brief on appeal to the Alabama Supreme Court, petitioner 
again challenged the voluntariness of his confession:

The admission of this confession violated 
the rights guaranteed to the defendant by the 
Due Process Clause of the Fourteenth Amendment 

the United States Constitution, it violated 
the holding in Beecher v. Alabama, 389 U.S. 35 
U967)." (Defendant-Appellant‘s Brief on Appeal to the Alabama Supreme Court, pp. 16-17.)

The majority opinion of the Alabama Supreme Court first 
considered whether the morphine administered to petitioner
immediately prior to his confession constituted a constitutionally 
impermissible influence. it found:

• . . that the able trial judge correctly
ruled that the confession given by the defendant 
•0^Jr* ^eadrick in the emergency room, considered independently, meets the test of voluntariness 
subscribed to in this State, as well as that 
proscribed [sic] by Federal constitutional pro­visions ." (A. 7a .)

The basis of that conclusion was that:

There is nothing in the record tha t satisfies 
this court that the administering of morphine 
in this case either overbore 'defendant’s will ' 
or that his confession was not 'the product of a 
rational intellect and a free will.'"(a . 6a.)

Second, the court found that the circumstances surrounding
petitioner's initial apprehension and confession to Police Chief
Burroughs did not render the later statement involuntary.

"The State did not offer this confession in 
evidence but the trial judge did admit the 
confession of Dr. Headrick . . . .  The 'no 
break in the stream of events' contention was 
buttressed by so-called 'uncontradicted' facts 
in the first trial, but in this' trial this was 
not true. This court holds that the ’no break 
m  the stream of events' contention in this

12



I'-'i V"-* ' 't■'•••» *-■>><*•• ;▼ .»'.-*« •I

instance is without merit." (A. 8a.)

justices (Heflin, C.J. and Lawson, J.) dissented "from 
the portions of the majority opinion concerning the admissibility 
of the confession." (A. 11a.) Directing themselves to the in­
fluence of the morphine upon petitioner's will to confess, they 
wrote: «

It must be concluded that expert testimony 
to the effect that a drug did not cause an 
impairment of the mental processes or have any 
effect on mental capacity merely goes to establish 
'coherency' and there must be further evidence 
that the confession was the product of a rational 
intellect and a free will in all aspects before 
it is admissible." (A. 13a.)

B. The Wi therspoon Issue:
At the October 21 remand hearing directed by the Alabama ilSupreme Court to determine the constitutionality of the voir dire ! 

examination of petitioner's trial jury under Witherspoon v. Illinois, 
391 U.S. 510 (1968), and Mathis v. Alabama, 403 U.S. 948 (1971), j 
counsel for petitioner objected to the failure of the State to 
have "the entire voir dire examination . . .  in the transcript." ' 
(Remand Tr. 32.) At a minimum, counsel urged that petitioner 
was entitled to an "explanation . . .  as to why this [the transcript] 
was not in the record." (Remand Tr. 32.) Defense counsel further 
took the position "that it is the affirmative duty of the State 
to show that none [scrupled veniremen] were challenged for cause."

i(Remand Tr. 29.) I
The trial court ruled that the state "has met any burden on

it" (Remand Tr. 31); and in itsformal findings, the trial court
concluded: ,

"1. No juror was challenged at the trial of 
the defendant-appellant because of an affirmative 
answer to a general question as to a fixed opinion i
against capital punishment." (Remand Tr. 35.)

In its December 9 opinion after remand, the Alabama Supreme
Court summarized the remand proceedings and affirmed petitioner's
sentence of death:

13



/ *'X W* ' *■ - .r-' *» •*'»«■. • 4 - «*

"The findings of the [trial] court are 
I' overwhelmingly supported by the evidence.
!i Such facts precluded any possible applica­

tion or operative influence of the doctrine 
enunciated in Witherspoon and Boulden, supra "(A. 18a.) -- --'

4/
December 23, 1971, new counsel for petitioner filed a

. . _ i
; Petition for rehearing and brief in support of the petition for«
rehearing, arguing:

"We respectfully submit to this Court that
Witherspoon does not allow loose practices i
in the State's affirmative duty to prove
that no scrupled juror was challenged for
cause. A practice whereby participants in i
a trial are recalled and asked to speculate
as to what they remember at the time of the
trial can not be substituted for a transcript j
of the voir dire of the jurors . . . .
"The state thus failed to meet its burden of 
making 'unmistakably clear' the fact that 
no jurors were excused because of opposition 
to the death penalty." (Defendant-Appellant's 
Brief in Support of Petition for Rehearing,
pp. 10-11.)

Rehearing was denied without opinion.

4/ Following the October 21 remand hearing, petitioner was success- 
ful in securing the aid of counsel whose participation he had I
sought by his request for an adjournment of that hearing. See [
sopra, p. 11. After entering the case, new counsel filed a 
Motion for Leave to File Brief in the Alabama Supreme Court, which ■ 
reached and was filed in the Alabama Supreme Court on December 10, i 
1971, one day after that court's decision had been rendered.

- 14 -

I

i
i



REASONS FOR GRANTING THE WRIT
I.

Certiorari Should Be Granted To 
Determine Whether The Confession 
Used To Convict Petitioner Was 
Obtained Under Inherently Coercive 
Circumstances, fn Violation Of His 
Fourteenth Amendment Rights.

The constitutional precondition for admissibility of any
challenged confession is voluntariness. "The question in each
case is whether a defendant's will was overborne at the time
he confessed." Reck v. Pate, 367 U.S. 433, 440 (1961); see
Lynumn v. Illinois, 372 U.S. 528, 534 (1963). As Mr. Justice
Frankfurter put it;

"Is the confession the product of an 
essentially free and unconstrained choice 
by its maker? If it is, if he has willed 
to confess, it may be used against him.
If it is not, if his will has been overborne 
and his capacity for self-determination 
critically impaired, the use of his confession 
offends due process." (Culombe v. Connecticut.
367 U.S. 568, 602 (1961). -----------

In its earlier Beecher decision, this Court reviewed the
voluntariness of petitioner's confession and found:

"The petitioner, already wounded by the 
police, was ordered at gunpoint to speak 
his guilt or be killed. From that time 
until he was directed five days later to 
tell Alabama investigators 'what they wanted 
to know,' there was 'no break in the stream 
of events,' Clewis v. Texas, 386 U.S. 707,
710 * * * : For he was then still in pain,under the influence of drugs, and at the 
complete mercy of the prison hospital 
authorities." Beecher v. Alabama, 389 U S 35, 38 (1967). -------

On the present record, neither the testimonial differences 
that the State now contends made petitioner's initial confession 
to Police chief Burroughs voluntary nor the fact that the 
State chose to use a confession obtained closer in time to 
that initial confession than the one condemned by this Court 
in Beecher I should lead to a different result. Both distinc­
tions were suggested by a majority of the Alabama Supreme Court

15



•******■, ?s *%:r-:m.. y-.v+rr’*’- ■ .*. >.'•"• :-v ;*■>*■ **7?*v .lu -*». ., - •--■• . rr*\"'■• ■»•*-- '«? :.»>':■ • «■
!!
I ■ . ■ •* ) .-• ••■•• . .:..
IIII
j in confining Beecher I to its precise facts. But, as this 
! Court expressly pointed out, the facts of a case may "differ 
j in some respects from those in previous cases where we have

j !  held confessions to be involuntary. . . . fcl onstitutional
jj inquiry into the issue of voluntariness 'requires more than ar
Jj mere color matching of cases' Reck v. pate, 367 U.S. 433, 442 
;; . . .  Beecher v. Alabama 389 U.S. 35, 38 (1967) . And any
I "realistic appraisal of the circumstances in this case" (ibid 
j emphasis in original) makes it plain (as two Justices below 
■ concluded) that the State has failed to show petitioner's state
‘ I
ii ments here used to convict him were in fact voluntarily made.
! ’ A. On the Totality of the Circumstances of This Case, 

Petitioner's Confession Was Not Voluntary.
|

The circumstances surrounding petitioner's initial "con­
fession" are detailed at pp. 5-10, supra. Even if all con-

I ,
' tradictions in the evidence are resolved in favor of the State, 
jj there remains a "total combination of circumstances ' . . .so
|! inherently coercive that its very existence is irreconcilableji
j with the possession of mental freedom. . . .'" Reck v. Pate,
ij
i 367 U.S. 433, at 442 (quoting Ashcraft v. Tennessee, 322 U.S.
il
jj 143, 154 (1944) .)i

First, it is undisputed that petitioner was "physically 
I weakened and in intense pain" (Reck v. Pate, supra, at 442)
. f
j after being felled by the rifle bullet. His right leg,

amputated five days later, was almost severed from his body.
Even though the force used to apprehend petitioner is not
challenged as unreasonable, the fact remains that petitioner

_5_/
h was suffering severely. A wound of this severity, at the

jj _5_/ Compare Davis v. North Carolina, 384 U.S. 737, 746 (1966) 
in which this Court attached significance to the fact that Davis 
had been given an extremely limited diet by the police, thus 

j weakening his condition, even though "the record . . . [did)not
j show any deliberate attempt to starve Davis." And in Reck v. 
j1 Patj;, 367 U.S. 433, 440 (1961), this Court proceeded on the

16



- ■ •• • ••» -•*?.. *%*»/

very least, disorients the exercise of normal judgment; and, 
in petitioner's case, placed him wholly at the mercy of his 
captors for both relief from pain and medical care. Operating 
on a man who had been on the run for two days and "hadn't 
eaten in some time, pain and helplessness "can be expected to 
have had a significant effect on . . . [petitioner's] physical 
strength and therefore his ability to resist." Davis v. North
Carolina, 384 U.S. 737, 746 (1966). See also Sims v. Georgia. 
385 U.S. 538 (1967) .

Second, petitioner was fearful of mob violence, a con­
clusion that is inescapable in the face of his constant pleas 
to the arresting officers not to let "the mob" get him.-̂  The 
risk of mob violence has consistently been considered a critical 
circumstance "furnishing an atmosphere tending to subvert 
petitioner's rationality and free will," Haynes v. Washington.

!l

5 / (Con't.)

°ffiCerS dld *"«*<* deliberate physical

Gir S? 9 ^ 1S° £ayt0n V* ^l-ted States, 222 F.2d 794, 796-97 (D.C Cir 1955), where a confession obtained "within an hour" 
following violence necessarily inflicted by a police officer
involuntaryfGn^an*" Pr°CeSS °f his aPP™hansion was held

"We assume the officers had authority to use 
the force reasonably necessary to effect the 
arrest and confinement. But when a confession 
is elicited so soon after the use of violence 
upon the prisoner, resulting in bloodshed, 
the compelling inference is that the confession 
is not the free act of the prisoner. it is 
immaterial that other coercion did not occur 
at the moments he was questioned and signed the 
statement. Violence at the hands of the police 
admittedly had occurred within about an hour."

~  The testimony elicited on petitioner's motion for a change 
venue (R. at 14-215) from Jackson County where the murder 

,. Urr?d establishes that Mrs. Chisenall's murder and peti- 
tioner s escape generated vast publicity in the press and o t h o r
friaht thJfc I?3?7 pe°ple in Alabaraa and Tennessee^l ike were 
parses of f  S Petitioner was at large; and that huge search parties of armed citizens ranged the Alabama and Tennessee

untryside searching for petitioner. The Chief of Police also 
confirmed that a "mob" had been searching for petitioner

- 17 -

•J



»  r  a *

r
*

373 U.S. 503, 523 (1963)(dissenting opinion). See Chambers
v. Florida, 309 U.S. 227 (1940); Payne v. Arkansas. 356 U.S.
560 (1958).

Third, petitioner was also undoubtedly fearful of the 
arresting officers who had shot him down. They approached with
guns at the ready; and although the Police Chief testified that*
he put away his gun after finding petitioner unarmed and that 
neither officer pressed his gun against petitioner's nose, it 
remains undisputed that the officer who shot petitioner kept 
his rifle out at all times. it is also undisputed that the 
officer fired the rifle into the ground twice close to 
petitioner. Petitioner testified that he took this as a 
threat. The Chief explained that the shots were a pre-arranged 
signal, but admitted that nothing was said to petitioner to 
explain that fact. At that point, according to the chief, he 
demanded of petitioner, "Are you the man they are hunting in 
Alabama?" and petitioner admitted that he was and that he had 
raped and killed Mrs. Chisnenall. clearly these circumstances 
were enough "to fill petitioner with terror and frightful 
misgivings." Chambers v. Florida, 309 U.S. 227, 239 (1940).
The petitioners in Chambers found themselves "surrounded by 
. . • accusers . . interrogated by men who held their very 
lives —  so far as these ignorant petitioners could know -- 
in the balance," 309 U.S., at 240. So did this petitioner.

Summarily, then, the record shows petitioner severely 
wounded, hunted and hungry, in "intense pain," and in fear for 
his life. He was lying helpless on the ground when the officers 
reached him, fired shots into the ground near him, and demanded 
whether he was the man being hunted in Alabama. On this record, 
it would belie all human understanding to say that petitioner's 
initial confession in the field was "essentially the product of j 
a free and unconstrained will."

18 -



The State chose, of course, n 
confession, but upon petitioner's ; 
Dr. Headrick within the hour. Bot' 
confession to the physician admiss 
or applying the rule announced in !■ 
curring opinion in Darwin v. connec 
approved by the full Court in Robin 
666 (1968), that "when the prosecuf 
uttered after an earlier one not ft 
. . . the burden of proving not oni
was not itself the product of imprc 
coercive conditions, but also that 
by the existence of the earlier co: 
Since the Alabama courts "applied -t' 
case," ibid. —  that is, failed to 
the problem of multiple confession;:.'1 
stitutiona1 grounds, bd., at 350 —  
infected with fatal error and revet; 
See Rogers v. Richmond, 365 U.S. 53 
the full extent of the error because 
tional standards are applied to the 
record, petitioner's confession to j 
not be held admissible consistently 
Clewis v. Texas, 386 U.S. 707, 710 ( 
U.S. 538 (1967), 389 U.S. 404 (1967) 
at 38.

Petitioner’s second confession 
evidence at the trial now sought to ; 
as much in "'the stream of events,'" 
confession, made five days later at 
Alabama, which Beecher I held inadmi 
circumstances of the second confess:' 
fully the influence of the first. N

- 19 -

rely upon this initial 
quent statement made to 
rts below held the 
without considering 
istice Harlan's con- 

391 U.S. 346 (1968), 
v. Tennessee. 392 U.S. 
eeks to use a confession 
o be voluntary, it has i
t the later confession 
hreats or promises or 
s not directly produced 
on." 391 U.S., at 351. 
ong standard in this 
the "proper approach to

I
llenged on federal con- j 
judgment below is 
upon that account alone. 

61). But that is not 
-e the proper constitu- 
ntested facts of this 
eadrick plainly could 
the principles of 
) ; Sims v. Georgia, 38 5 
:i Beecher I, 389 U.S.,

he one admitted into 
•;viewed —  was surely 
I- , as his third 
rison hospital in 
e. Indeed, the 
speak far more force- 
ly did it follow by



• ■'s»‘'jfnw - - •

j one hour, rather than five days, the shooting of petitioner and 
l his confession in the field; not only was it made to the 
| physician who was giving petitioner first aid for a nearly 
•I severed leg; but in Beecher I this Court noted that, prior to
I1 .j the confession there invalidated, the state investigators 
'! testified that "they had told the petitioner. . . that he was 
jj under no obligation to speak and that anything he said could be 
j| used a9ainst him." 389 U.S., at 37, n. 4. in sharp contrast,
" ■*■*' ■'■s undisputed that, prior to his statement to Dr. Headrick
i!jl petitioner was not advised either of his right to be silent
i i
| or of his right to counsel. Although no claim is or could be
i 7 /
I made here under Miranda v. Arizona. 384 U.S. 436 (1966),

the absence of any constitutional warnings is nonetheless
!i .j, relevant to the issue of voluntariness, Davis v. North Carolina. 
J; 384 u*s* 737, 740-741 (1966), and a fortiori to the issue 
ij whether petitioner's second confession was "directly produced jj h y  t h e  existence of (hisl .  .  .  earlier confession." Darwin 
|| v* Connecticut, 391 U.S. 346, 351 (1968) (opinion of Mr. Justice| i •jj Harlan) .

j

Upon this record, both the conclusions that petitioner's 
first confession impermissibly influenced his second and that 
the second itself was involuntary cannot be avoided. The two 
confessions were made within the span of one'hour, separated 
only by petitioner’s ride to the hospital in the back of a 
flatbed truck while severely wounded, and petitioner's receipt

Q  /

of two injections totaling a half grain of morphine. The
pressure on petitioner was continuous, part and parcel of the

_7_/ Jenkins v. Delaware. 395 U.S. 213 (1969).
noted by this Court in Townsend v. Sain, 372 U.S. 293 

308 n. 4 (1963) the determination of whether a" drug "caused" 
an accused to confess is to be made in the context of the 
"relevant circumstances."

-  20 -



* •- • ---- * ... -

same transaction as it affected petitioner's state of mind —  
the critical determinant for resolution of the constitutional 
issue. All were simply parts of one continuous process."
Leyra_ y. Denno, 347 U.S. 556, 561 (1954).

When petitioner arrived at the hospital, he was weakened,
wounded and in intense pain. Dr. Headrick described him:

"I felt sorry for this man. He looked 
almost like an animal. i was trying in 
the best way i could to make him comfortable, 
of course, to relieve his pain, offer him 
cigarettes and that sort of thing to make 
him comfortable. He hadn't eaten in some 
time either." (r . 281.)

Two quarter-grain shots of morphine, as the Supreme Court of 
Alabama acknowledged, were "not enough to alleviate all of 
defendant's pain." (A. 5.) At the hospital, there were 
numbers of policemen "all over the place"; one could "hear 
all sorts of voices as many policemen were concerned." And 
the haunting fear of mob violence was about . . .  in an 
atmosphere charged with excitement and public indignation."
^fflbers v* E-lorida, 309 U.S. 227, 240 (1940). cf. Payne v. 
Arkansas, 356 U.S. 560 (1958).

Most significantly, petitioner was given a very substan­
tial dose of morphine. Morphine has the capacity to induce a 
confession by weakening and clouding a person's ability to 
make self-interested judgments, rationally to appraise his 
circumstances and to weigh the consequences of admitting guilt.

3-/ Petitioner was given \ grain subcutaneously and % grain 
intravenously. The average adult subcutaneous dosage il k grain 
. BECKMAN, PHARMACOLOGY 226 (1961). Alternatively, "Mlntra- 

venous administration of 10 mg. [1/6 grain] will give quicker and 
somewhat greater relief. . . . »  ibid. See also L. GOODMAN and 
.GILMAN, THE PHARMACOLOGICAL BASIS OF THERAPEUTICS 239-240

DRUGS 21 ^1957) A * REYN0LDS 3nd L* RANDALL, MORPHINE and ALLIED

21



The authorities list among the effects of morphine "difficulty-
in thinking," "mental clouding," "depression of inhibitory
mechanisms," "freedom from . . . restraining conditions,"

JL £ /"uninhibited" and "trustful." Dr. Headrick testified that
the drug gives one a "feeling of well being."

10/ See Comment, "Admissibility of Confessions and Denials 
Made Under the Influence of Drugs," 52 N.W.L. REV. 666, 667 
(1957) :

"The opiate drugs, the most common of which 
are opium, heroin, morphine and codeine, 
cause drowsiness, inability to concentrate, 
difficulty in thinking and sometimes 
hallucinations."

A. GROLLMAN and E. GROLLMAN, PHARMACOLOGY AND THERAPEUTICS 
(7th Ed., 1970) :

"The action of morphine consists mainly of 
a descending depression of the central nervous 
system. Its apparent stimulant effects are 
attributable to depression of inhibitory 
mechanisms . . .  In addition to its action in 
abolishing pain, morphine induces a sense of 
well-being (euphoria) and facilitates certain 
mental processes while retarding others. There 
is a feeling of freedom from the restraining 
conditions which previously limited activity; 
the imagination is untrammeled by its usual 
controls. . . ." (Ij3. at 103).

L. GOODMAN and A. GILMAN, supra at 250:
"Morphine also produces mental clouding 
characterized by drowsiness and inability 
to concentrate, difficulty in mentation, 
apathy . . . and lethargy. Mental and
physical performance is impaired . . . .
Morphine and related drugs rarely produce the 
garrulous, silly, and emotionally labile 
behavior frequently seen with alcohol and 
barbiturate intoxication."

The discussion notes that no slurred speech or significant 
loss of motor coordination is noticeable in a person under 
the influence of morphine because the central depressant action 
of morphine is unlike that of the inhalation of anesthetics 
or barbiturates. See also H. BECKMAN, supra at 225, noting 
that even though a patient may be conscious after taking 
morphine, he is still "likely to be mentally clouded":

" [Morphine] apparently introduces awareness 
of pleasant things to shove aside awareness 
of what is not wanted . . . I t  seems actually
to make the individual indifferent to the pain 
he perceives." (I_d. at 2 26).



?"r4 ci,*vw.'.̂, **. -.**•< - .3* **'•'. *t*r~''%*??i*i 'H'-M-a.'t ■..
II I

Immediately prior to the morphine shots, petitioner -- 
so weary and wounded that he "looked almost like an animal" -- 
was apparently not talkative, said nothing to Dr. Headrick. |
The shots put him "at ease", made him feel "relaxed" and like
he "wanted to love somebody." it was then that Dr. Headrick ', ,  . . 11 / asked petitioner why he committed the crime, and petitioner

I Q _ /  (Con ’ t.)

See also Smith, Subjective Effects of Heroin and Morphine in 
Normal _Sub jects_, 13 6 JOURNAL OF PHARMACOLOGY AND E X P E R I M E N T A L  
THERAPEUTICS 47 (1962)(in which the author lists the following 
as effects reported by subjects under the influence of morphine 
mental clouding," "mental inactivity," "obliging attitude," 
"mentally slow," "trustful," "uninhibited," "contented," 
"carefree," "talkative," "light-headed"); t . SOLLMAN, A MANUAL 
OF PHARMACOLOGY, 293 (8th Ed. 1964)("Free imagination but 
confused intelligence"); A. REYNOLDS and L. RANDALL, supra at 
21 22; J. LEWIS, AN INTRODUCTION TO PHARMACOLOGY, 392 (3rd Ed 
1964); Beaver, The _An_algesic Effects of Morphine and Methadone! 
8 CLINICAL PHARMACOLOGY AND THERAPEUTICS 415 (May-June' 1967)~T~

The above effects are described as incident to normal dosage. See supra, n. 9.

jyV The Alabama Supreme Court's conclusion that "[i]n fact, 
is noh clearly established that the doctor even questioned 

defendant" (A. 5a) is plainly erroneous upon the whole record.
It is true that in one instance, the doctor related: "I am not 
exactly sure if I asked him specific questions but he told me 
quite a bit about it," and that "[i]n another place, the doctor I 
indicated I think I asked him why did he do it." (A. 4a, 6a). |
But the doctor also testified unambiguously in response to the 
State s questioning that he asked petitioner "why lie did it," 
and that prior to that time petitioner had made no statement 
as to what he had done. ( R .  315.) See supra, p .  9 . j

The trial court also relied heavily on the fact that Dr. 
Headrick was not an employee of the police or acting at their 
behest ( R .  311); and the Alabama Supreme Court made the same 
point (A. 6a)„ But petitioner was brought to the hospital by 
the arresting officers for treatment; he was never out of their 
control; Dr. Headrick treated him at their request; and their 
presence dominated the atmosphere. Although there were 
apparently no police officers in the treatment room itself at 
the time of the confession, "there were officers all over the 
place, and in the hall and at the door." Petitioner was 
unquestionably in police custody, and was in no physical or 
mental state to make fine distinctions concerning the character j 
of the surrounding personnel. Under these circumstances, the 
fact that the doctor was a "private" individual does not lessen , 
his contribution to the totality of factors that rendered peti­
tioner s convession involuntary. See Sims v. Georgia, 385 U.S.
533 (1967), 339 U.S. 404 (1967)(confession made after defendant i 
was abused by private physician while in police custody)•
Robinson v. Tennessee, 392 U.S. 666 (1963)(confession made to

23



4- f • " '

told the doctor, a complete stranger, his entire life history-
in addition to confessing an offense which would cost him his
life. The fact that petitioner was under the "influence of
drugs," Beecher v. Alabama. 389 U.S. 35, 38 (1967) —  a factor
that this Court has repeatedly held significant in assessing
the voluntariness of a confession, Townsend v. Sain, 372 U.S.

12/293 (1962); Jackson -v. Denno, 378 U.S. 368 (1964) -- here 
combined with other coercive circumstances to cross "the line13./of distinction" and vitiate petitioner's will.

11/ (Con't.)
reporters following earlier confession extracted by police). 1
This case therefore does not present the question (long 1
settled in the affirmative, in any event) whether an involuntary 
confession extracted by a private person is constitutionally 
inadmissible in a criminal prosecution. See Bram v. United 
States, 168 U.S. 532 (1879) ; United States v. Pobinsoiu 439 
F.2d 553 (D.C. Cir. 1970), and cases cited in note 8 therein. !
12./ !n Jackson, Mr. Justice Black (concurring and dissenting) 
would have ruled the drug-affected confession inadmissible 
because "given under circumstances that were 'inherently 
coercive,' . . . and therefore . . . not constitutionally
admissible under the Fifth and Fourteenth Amendments." 378 
U.S., at 409. I

See also Logner v. North Carolina. 260 F. Supp. 970 
(M.D.N.C. 1966)(defendant under influence of alcohol and 
amphetamine, Syndrox; confessions while in police custody held
involuntary); In re Cameron. 67 Cal. Rptr. 529, ___ Cal.2d ,
439 P.2d 633 (1968) (defendant under influence of alcohol and 
tranquilizer, Thorazine; confessions while hospitalized held 
involuntary); Reddish v. State. 167 So.2d 858 (Fla. 1964)
(wounded defendant given demerol to ease pain; confession held i 
involuntary, the Court commenting that demerol "appears to be 
in usage as a substitute for morphine, perhaps somewhat less 
likely to produce psychic effects but nonetheless in a class 
with the opiates. . . . "  (167 So.2d,at 861)) ; State v. Graffam, 1
202 La. 869, 13 So.2d 249 (1943)(wounded defendant in hospital 
given morphine and other drugs; confession held involuntary).
13/ Culombe v. Connecticut, 367 U.S. 568, 602 (1961)(opinion
of Mr. Justice Frankfurter): "The line of distinction is that 
at which governing self-direction is lost and compulsion, of 
whatever nature or however infused, propels or helps to propel the confession."

- 24



B. Petitioner's Confession Cannot Be Sustained as Voluntary 
upon this Record Because the Courts Below Failed to Make 
An Adequate Inquiry Concerning the Effects of the Dosage 
of Morphine Administered to Petitioner.

There is an additional weighty reason why petitioner's 
confession to Dr. Headrick fails to satisfy the requirements 
for constitutional admissibility. Upon the record before the 
courts below, and now before this Court, there is insufficient 
evidence or inquiry concerning the properties of morphine and 
its effect upon petitioner to sustain the State's burden of 
showing voluntariness of a confession made following adminis­
tration of the drug. it was for this reason that the two 
dissenting Justices below concluded that "the confession by 
the defendant to Dr. Headrick in the case at bar fails to meet 
the necessary standard of voluntariness as required by this 
Court's decisions and controlling decisions by the Supreme Court 
of the United States." (A. 16a.)

"rw]hen a confession is challenged as involuntary and is 
sought to be used against a criminal defendant at his trial, 
he is entitled to a reliable and clear-cut determination that 
the confession was in fact voluntarily rendered," Lego v.
Twomey, 30 L.Ed.2d 618, 627 (1972); and the burden is on the 
State to prove voluntariness by a preponderance of the evidence, 
ibid. Here, the evidence disclosed that petitioner confessed 
immediately following the injection of two quarter-grain shots 
of morphine. If the morphine so affected petitioner that "his 
confession was not 'the product of a rational intellect and a 
free will,' his confession is inadmissible. . . . "  Townsend 
v. Sain, 372 U.S. 293, 307 (1963). The courts below were 
therefore required, as a constitutional prerequisite for 
admission of this confession, to inquire and determine upon an 
adequate evidentiary record the extent to which the quantity 
of morphine that petitioner received affected his will to 
confess.



Two witnesses testified concerning the effects of the 
jmorphine upon petitioner: petitioner himself and Dr. Headrick, 
ij Petitioner testified, as noted at p. 10 supra, that after the‘I
l| morphine, he felt "at ease," "relaxed, " "like. . .[he] wanted to 
ilove somebody;" that he did not lose consciousness but "didn't 
have control of [his] . . . mind;" and that he could not rememberI!
|‘ the contents of his subsequent conversation with Dr. Headrick.
Dr. Headrick's relevant testimony, elicited upon voir dire exami- 
j'nation, was as follows:

ij Q- [hy the prosecuting attorney] : I will ask
you, doctor, did you administer any treat­
ment to him at that time?

A. Yes, sir.
Q. What was that?
A. He had a gunshot wound of the leg and the tibia 

was shattered and the leg was cleansed and 
packed with gauze and he was given a medication 
for pain and the wound wrapped and strapped so 
he could be transported.

Q. What kind of medication did you give him?
A. Morphine. (R. 276.)*  *  *
The Court: How much morphine did you give him?
A. I gave him a quarter of a grain intravenously 

and a quarter of a grain muscularly.
The Court: What effect would it have on his mental 

capacity?
A. Well, morphine will relieve pain and make a 

patient have a feeling of well being. it 
doesn t - - unless you get a tremendous over­
dose where it suppresses respiration or makes 
them unconscious - -

The Court: This particular case, in your opinion 
did he know what he was talking about?

A



•/ *r*f. . ■■■■’■'■-.A>- ••<-‘v* .. . j  î V v* «* .«. ,.-■■*.••• • * *-■ V Vv'* **

A. Yes, sir.
The Court: And know the meaning of it?
A. Yes, sir.
The Court: Realized it?
A. This dosage was not even big enough to 

completely relieve all of his pain.
The Court: All right. Go ahead. (R. at 278.)* * *

"Q. [by defense counsel]. And you then -- you 
administered morphine?

A. Yes, sir.
Q. Intraveneously [sic] and muscularly?
A. Yes, sir.
0. Did you give him anything else for pain?
A. No, sir, that is all.
Q. You say the dosage administered to him was not 

completely enough to alleviate him of all the 
pain [sic]?

A. Yes, sir, he still had pain to try to move 
him." (R. 280.)

After the trial court had ruled the confession voluntary 
and admissible. Dr. Headrick further testified before the jury, 
to the following effect:

*  * j

."Q. [by the prosecuting attorney]. Now, doctor, 
you said you gave him some morphine. What 
effect would the morphine that you have -- that 
you gave him have on him?

A. Ease his pain, make him have a feeling of well 
being, relax him.

Q. It wouldn't effect [sic] his mental capacity 
in any way?

•J■\ Y
27



; • 9K-TW t » < \ «  ft-  M 1 r

i **i
\' ■ 
i
i| A. No sir, not unless he became unconscious, 
jl If he had had an overdose of course, respira-

tion would be effected [sic] and he would be 
unconscious.

i Q * Did you give him anything besides morphine?
The Court: Let me interrupt. You didn't give

*
;i an overdose, did you?
l! A. No, sir." (R. 314-315.)•j

This is literally all of the evidence in the record con- 
|j cerning the impact of the two morphine shots upon petitioner's
ii critical confession, which followed immediately after their
|j
!| administration. The trial court made no specific findings of fact
’ I
jj relating to the drug. Clearly, its inquiry on the subject was 
i j  inadequate. For, even putting aside what is medically known about! 
jj morphine (see pp. 21-24 supra) because no information of the sortif i
was introduced in the trial court by either the prosecution or the |I j
indigent petitioner's court appointed defense counsel, the court
was uncontestably confronted with a confession following injection'II |
of a drug sufficiently potent to make a man whose leg was nearly j

i I
severed feel like he "wanted to love somebody" and tell a strange 
doctor his life history. These facts alone put the court oni !

i' inquiry, c_£. Pate v. Robinson, 383 U.S. 375 (1966), that the ;
drug's effect upon petitioner's will was a material issue going to
the voluntariness of his confession. Nevertheless, the court 
confined its inquiry to petitioner's "mental capacity" and | '
lucidity -- whether he "did know what he was talking about" and 
"know the meaning of it" —  and entirely failed to explore the 
effect of the drug upon voluntariness. The prosecution, which 
had the burden of proof of voluntariness, did no more.

The Supreme Court of Alabama filled this gap of inquiry 
(in the words of the dissenting Justices below) by "wrongfully

28



(A. 15a.)[placing]. . . the burden of proof on the defendant."
The majority opinion begins by recognizing that "extrajudicial 
confessions are prima facie involuntary and inadmissible" and 
that the court must be satisfied of their voluntariness before 

' admitting them. (A. 3a.) But it sustains the admission of peti­
tioner's confession upon the express ground that:

;j "There is nothing in the record that satisfies
the court that the administering of morphine 

ji in this case either overbore 'defendant's
will' or that his confession was not 'the ij product of a rational intellect and a free
will.' " (A. 6a.)

Obviously, the Courts below neither did nor could find upon this
;| record that the State met its burden of proof on the confession 14/
j issue. Rather, to quote once more from Chief Justice Heflin's

iM/ In this connection it should bd noted that, within a few 
days of the filing of the Beecher opinion, the Alabama Supreme 

jjCourt denied certiorari to the Alabama Court of Criminal Appeals 
j in another drug-affected confession case. Dannelly v. State,
254 So.2d 434 (Ala. Ct. Crim. App.), cert, denied, 254 So.2d 443 

i; (Ala. 1971) . in that case, the record revealed that defendant 
i| had been given an unspecified dosage of tranquilizers (Sparine 
and Mellaril) prior to his confession. The Court of Criminal 
Appeals concluded

: . .from the pattern of cases that tranquilizers
| not administered with other potentiating drugs are

prima facie innocuous as affecting the rational and 
volitive faculties. In other words, the defense has 
the onus of persuasion to show an overbearing of the 
will." (254 So.2d, at 440.)! i

;i Chief Justice Heflin concurred in the decision of the Alabama 
•Supreme Court to deny certiorari but stated:

"• • -I want it clearly understood that I do
not approve all of the language contained in 
the opinion of the Court of Criminal Appeals.
My position concerning drug-affected confessions 

j was set forth in a dissenting opinion in Beecher
v. State, . . ." (254 So.2d at 443.)

29



- •

||dissenting opinion in the Alabama Supreme Court, the evidence
ijregarding the nature and effect of morphine, viewed
jl „I,1 . . .  m  its most favorable light for the State,

• . . merely showed that the defendant knew what 
|| he was talking about; knew the meaning of what

he said; realized what he was saying; and the 
morphine did not affect his mental capacity."(A • 1 2a •) i

j! "It be concluded that [the] expert testimony
[ m  this case] to the effect that, a drug did not 
cause an impairment of the mental process or have 
any effect on mental capacity merely goes to 
establish 'coherency' and there must be further 

Ij evidence that the confession was the product of
■! a rational intellect and free will in all aspects

before it is admissible." (A. 13a.)
It is also the teaching of this Court’s cases that neither 

.coherency (Townsend v. sain, 372 u . s .  293 (1963) > “ '"nor reliability 
■ (Rogers v. Richmond, 365 U.S. 534 (1961) ) is the benchmark of a 
jconstitutionally admissible confession. Therefore, whether the j 
courts below fai^cd to apply these principles (See Rogers v.
Richmond, supra), or misassigned the burden of proof connected

15/ This is not to deny that coherency is relevant to the 
question whether an accused's will is overborne. Certainly where 
the hallmark of a particular drug is that it distorts speech and 
cognitive and emotional reactions, the presence of incoherent 
speec may indicate impaired mental and emotional functions and 
the extent of a particular drug's effect on volition? B^tSere 
is absolutely nothing in the record of this case to establish 
such a linkage between coherency of speech and the effect of 
morphine upon defensive and cognitive processes in a subject 
Judicially noticeable materials noted supra at np. 21-24 i
no such a correlation where morphine is concerned. ' ej

I1|/ As difficult as such tasks may be to accomplish, the judge 
j is . . .duty-bound to ignore implications of reliability in 
facts relevant to coercion and to shut from his mind any internal 
evidence of authenticity which a confession itself may bear " 
(Leg° v - Twomey, 30 L.ed 2d 618, 625 (1972).) Y

17/ The Alabama Supreme Court is at great pains to confine 
this Court s decisions in both Beecher I and Townsend v. Sain 
supra, to their particular factiT (A. 3a-4a,~6a, 7a-8a )

- 30 -



* * * * * O t o * 5 * .S 5 r ? * k '* W  ■"'■'■ * * * '• * . ,& l.4 L i? . ;  .-%;■■?■ *  .'.. - • •  -- -  V  v . -  . . . .  •* . »• ' v  ~ "• . # * ■ ' " • ■  -•' ^  * * .  * » \ .. ' t  v  ,~ ■-. • V

jwith them (see Lego v. Twomey, 30 L.ed 2d 618 (1972)), or mis- (| |
ji applied the law of the Constitution to "the entire record" inii • Iii this case (Davis v. North Carolina, 384 U.S. 737, 741 (1966)). i'l11 |
their judgments relegating petitioner to die upon the basis of
his confession to Dr. Headrick are infirm. They should be re-

!' viewed and reversed by this Court. "Due process of law, pre-
*

ii served for all by our Constitution, commands that no such practice
!as that disclosed by this record shall send any accused to his|l . ,

ji death." Chambers v. Florida, 309 U.S. 227, 241 (1940). \

'I



• • -  f t .  *•»  *4 f t * . * * ’* , * ^ * * .  •

; I
i!

ii
Certiorari Should Be Granted To Determine 
Whether An Indigent Capital Defendant's 
Challenge Under Witherspoon v. Illinois.
391 U.S. 510 (1968) To Selection Of His 

i Trial Jury Can Be Rejected On the Basis
Of The Trial Judge's And Prosecutor's 
Post-Trial Declarations That No Wither- 

, spoon Error Occurred, Without Providing
A Transcript Of The Voir Dire Or Showing 
That Such A Transcript Cannot Be Provided.

j In Witherspoon v. Illinois, 391 U.S. 510 (1968), this Court
held that a death sentence cannot be carried out unless the record 
makes it "unmistakably clear" and "unambiguous" that the selection 
of the )ury meets the minimum standards of Witherspoon. Wither- 
-?P-°-on v* Illinois, 391 U.S. 510, 516 n. 9, 522 n. 21 (1968); 
£gPlde.n- v* Holman, 3 94 U.S, 478, 482 (1969); Maxwell v. Bishop,
398 U.S. 262, 265 (1970). On June 28, 1971 this Court reversed
an additional 23 death sentences on the basis of Witherspoon.
Mg*™,611 and Boulden, including Mathis v. Alabama, 403 U.S. 946 
(1971).

Petitioner was tried in Alabama —  after this Court's deci­
sion in Witherspoon but before the holding in Boulden v. Holman 

under the prevailing Alabama provision, Title 30, Ala. code 
1940 (Recompiled 1958), §57 which provides that "it is a good
cause of challenge by the state that the person has a fixed

18/opinion against capital . . . punishment." On his automatic
appeal, petitioner's court-appointed counsel did not raise any 
challenge to the exclusion of scrupled jurors. The Supreme Court

•I ^  *n BQ.ulde.n.. this court made plain "that a person who has 'a 
ii , 1 X e d  against' . . . capital punishment might nevertheless

e Perfectly able as a juror to abide bv existing law-to follow 
conscientiously the instructions of a trial judge and to consider

°f the death sentence in- a particular case.'

- 32 -

L



of Alabama reviewed the record, found that no transcript of the 
voir dire examination was included in it, and, relying on this 
Court's decision in Mathis v. Alabama, 403 U.S. 946 (1971), held ! 
that it "should not order the sentence to be executed until I
satisfied that the jury which imposed the sentence of death was II
properly and constitutionally selected." (A. 11a )

[W ]e find ourselves in the position of 
being aware that the Supreme Court of the ,
United States will not permit the imposition 
of the death sentence unless an affirmative 
showing is made in the record that the re­
quirements of Witherspoon have been met. This 
court has already recognized that in view of 
the Witherspoon doctrine, trial courts should 
make certain in capital cases that the court I
reporter takes full notes from which a tran­
scription can be made of the examination of j
prospective trial jurors, (Liddell v. State,

---' 251 S°’ 2d 601' decided August 5,1971). It would undoubtedly prove futile if 
at this time we should not notice the absence 
in this record of an affirmative showing that j
the jury was properly qualified under Wither- 
■§P00.n as to their opinions in reqard to Impos­
ing a death sentence. " (A. 10a-1la.)20/

J^/The automatic appeal statute Tit is n n m \
responsibility on t &t court “'to £ &  the *£2£§' 9?a8n*y H
prejudicial to the appellant, even though not called to our atten
si°n2dn757le^6?fnSs7fe»' ' ^  V- — tC' 265 Ala' 623' 630' 93^1969? 757' 763 (1957)‘ Boykin v. Alabama, 395 U.S. 238, 241

20/ geecher was heralded by the Alabama Supreme Court's earlier 
decision m  Edwards v. State. 287 Ala. , 253 So. 2d 513 M Q 7n

the J^abama Supreme Court refused to affirm a sentence ofj
fs to thln -^ harSp°0n err°r was alleged and the record was silent, ?8 o? m  2̂11. dirg. examination of the jurors. Pursuant to Rule !
8 of that court, it issued petitions for writs of certiorari re- ' 

quinng the clerk of the trial court "to make a diligent search ofl
scriDtC°rdS and P^°^edure and to certify a full, complete tran- j script . including the matter of the qualification of the
O s / J o . / d  a?°518.rrtalnlnq t0 CapltaI pU"ishment' • • •"

"This Court is of the opinion that it is 
implicit in the Witherspoon holding that a 
full and complete transcript adequate for the 
purposes of appellate review must contain the 
proceedings incident to the selection and quali­
fication of the jurors pertaining to capital 
punishment." (Id. at 520.)

See also Liddell v. State. 
Pilkington v. State. 46 Ala 
cert. den ied, ___ Ala.

A !-a • ___» 251 So. 2d 601 (1971)-
App. 716, 248 So. 2d 755 (1971)
248 So. 2d 757 (1971).

I

li

I

33



- v ' 5 ' W  • • - .  . T > - » .  7;v :• */»•

‘I 
I:

Accordingly the Supreme Court of Alabama remanded to the trial 
court for a determination "whether any jurors were challenged
because of their affirmative answers to a general question as to

. . . . . 21/; a fixed opinion against capital punishment . . . "  (A. 11a.)i
i A. The Remand Hearing

The October 21, 1971 remand hearing, held more than two and 
one-half years after trial, leaves a record singularly lacking in 
clarity, filled with ambiguities and conflicts in testimony.

At the hearing, Mr. Black, who was the prosecutor at peti­
tioner's trial, testified "from recollection . . . not from notes”
(Remand Tr. 13), that although "Judge Powell asked the general 
questions of the jurors as to their fixed opinions against capital j
Puu i s hment (Remand Tr. 12), "[t] he state did not chal le nge any
juror for any cause . . . ."(Remand Tr. 13, 14. ) He testified he
was able to recall the Beecher voir dire because he had determined 
before trial that "in this case, if any juror had held up his handj 
I was going to strike that juror and not challenge him." (Remand

21 The Court also concludedi
t j

"that if any jurors were so challenged 
because of their affirmative answers to 
a general question about capital punish­
ment, that such jurors be summoned and 

11 examined."|
: That directive is illustrative of the curious practice Alabama 
j has developed for the supposed retrospective curing of Witherspoon 
, errors. Even though the voir dire examination conducted at a 
condemned man s trial demonstrates that veniremen were excused on 

J grounds disallowed by Witherspoon, the death sentence can be saved 
if the excused veniremen testify in remand proceedings —  ordi­
narily held several years after the trial -- that at the time of 
trial they entertained a state of mind which would have permitted 
their exclusions consistently with Witherspoon. E.g., Liddell v.

I State, Ala. ___, 251 So. 2d 601 (1971); Bi1lingsley v. State
|  7—  Ala.  _, 254 So. 2d 333, at 337. This procedure seems
; quite impermissible, cf. Rogers v. Richmond. 365 U.S. 534 (1961),
■ but its validity is not now presented.

- 34 -



* -  -  #

2j>yTr. 13.)

The testimony of petitioner's court-appointed trial counsel 
:! Armstron9' based on both his "recollection" and "notes" takes at 
•: the time the jury was qualified (Remand Tr. 16) was that from a

; Panel °f 73 veniremen, 13 were excused for "fixed opinions." His 
i notes indicated that some veniremen were excused for a "fixed
°pinion [which] could not be changed by the "evidence. " and that 

' others were excused for "fixed opinions with no other indication" 
(Remand 1r. 17.) For one venireman his notes showed "'challenged 

j for cause' and the Witherspoon case underlined." (Remand Tr. 19.; 
j But he could not be absolutely certain from his notes "whether 
1 anyone was challenged for cause for that purpose" (Remand Tr. 19)
, 3nd had n° indePendent recollection "whether they were or were 
not." (Remand Tr. 19.)

Additional court-appointed trial counsel, Mr. Weeks, testi­
fied from his recollection and "notes" taken at the trial (Remand 
Tr. 23): I have the words 'fixed opinion as to capital'
indicating that possibly there were some people that had fixed 
opinions as to capital cases." "Other than that, I have no 
independent recollection . . . that anyone was excused, or was 
not excused because of capital punishment." (Remand Tr. 25.)

The hearing judge, who had also presided at Beecher's trial, 
made a statement "for the record" without testifying as a witness ! 
subject to cross-examination. He recalled that "the district

4«5-presumption of unconstitutionally in the ju^y select^ That
alS° brin?s thls case outside the protection of this urt s assumption in Swain v. Alabama. 380 n q o n  n nrn

a ^ f l n  L T T CUt°r ^  aCtin9 ^Caccep table ̂ cons iterations ̂ ^ S e e  1.8 Re Anderson and Saterfield. 69 Gal 2d 613 619-A?n’
«P^. 2l.-446 P. 2d 117 (1968) , People v ? ch' 2d

694, 82 Cal. Rptr. 608, 464 P. 2d 64 71970T: buF7S7 contra : ^
Brown v. Commonwealth, 212 Va. 515, 184 S . E . 2d 7T57T7/

35 \if



attorney advised the trial judge that he would not challenge
anyone on the theory that they would not convict if the death
penalty was involved. . . . [A]nd the court recalls that no one
was challenged because of the capital punishment issue." (Remand
Tr. 34. ) The Court further stated,

"[T]he memory of the Court as one who 
participated in the trial of this case,
I think the conclusion of the Court is 
that there were no jurors challenged 
on the issue of capital punishment. . . . "
(Remand Tr. 31.)

On the basis of his recollection and the testimony adduced 
at the hearing, the judge found (1) that no veniremen had been 
challenged for cause by the State on any ground, and (2) that 
no veniremen had been excused for cause for fixed opinions 
against capital punishment. (Remand Tr. 35; A. 17a.) He there­
fore rejected any claim under Witherspoon. The Supreme Court 
of Alabama concluded that these findings of the trial court were 
"overwhelmingly supported by the evidence" and that "[s]uch 
facts preclude any possible application or operative influence 
of the doctrine enunciated in Witherspoon. . . . "  (A. 18a.)

That conclusion on this record makes a mockery of this 
Court's careful and meticulous rule announced in Witherspoon 
and subsequently applied on numerous occasions, requiring an 
unmistakably clear, unambiguous and unequivocal showing on 
"the voir dire testimony in a given case" that no exclusions 
have taken place on a "broader basis" than that announced in 
Witherspoon. Witherspoon v. 11linois, 391 U.S. 510, 522 n. 21
(1968); Boulden v. Holman, 394 U.S. 478, 483 (1969); Maxwell v.
Bishop, 398 U.S. 262, 266 (1970) . Plainly no such showing has 
been made here.

36



I B. The Inadequacy Of The RecordI IIThe record in this case, lacking any transcript of the voir 
23/ |

dire, is constitutionally insufficient on several counts.

I
23/ Beecher is not the only case in which courts have sought to 

'j resolve a Witherspoon issue without a voir dire transcript. In 
several cases, courts have reversed sentences of death based on 

; other evidence of Witherspoon violation. Spencer v. Beto, 398 
:{ F.2d 500 (5th Cir. 1968) (stipulation of parties) ; Hackathorn v. i 
i| Decker, 438 F.2d 1363 (5th Cir. 1971) (voir dire not recorded;
ij testimony of trial counsel and prosecutor) ; Townsend v. Twomey,
! 452 F.2d 350 (7th Cir. 1972) (most of voir dire not recorded;
reversal based on partial voir d ire) ; Davis v. Henderson, 330 F. |

,| Supp. 797 (W.D. La. 1971) (court takes judicial notice of improper! 
ij pre-Witherspoon state practices) ; Rouse v. State, 222 So. 2d 145 j
i, (Miss. 1969) (reversal based solely on "findings" of trial court);! 
l! Ex Parte Bryan, 434 S. W. 2d 123 (Tex. Ct. Crim. App. 1968) (voir ! 
j dire not recorded; stipulation of parties); Grider v. State, 468 I 
■ 1 S. W. 2d 393 (Tex. Ct. Crim. App. 1971) (only partial voir dire 
;! transcribed; reversal based on partial voir dire and witnesses) . j I '■i (

In some cases, reversal has been based solely on the failure I 
5 of the State to provide a voir dire transcript. Evans v. State, I 
5 430 S. W. 2d 502 (Tex. Ct. Crim. App. 1968) (trial court impro- 
l perly refused to have voir dire transcribed); Pinkney v. State,
; Cir. Ct. Palm Beach, Crim. No. 2490, (July 17, 1971) ("Justice
'• requires that the failure to properly record the proceedings be 
| weighted against the State of Florida, and not against the indigent 
j Defendant"). j
J . !|j Other courts have affirmed death sentences on evidence other '
! that the voir dire transcript. Jackson v. Beto, 428 F.2d 1054 
jj (5th Cir. 1970) (voir dire could not be found and no contention 
jj was made by defendant that it was by fault of state; testimony of j 
:! jurors, trial judge and prosecutor); Lokos v. State, 284 Ala. 53, 
ij 221 So. 2d 689 (1969) (defendant failed to ask that voir dire be
'.■ recorded; testimony of prosecutor); Seibold v. State, ___ Ala.
___, 253 So. 2d 302 (1970) (no reference to voir dire; testimony

i of excused veniremen); Reid v. State, 478 P. 2d 988 (Okla. Ct. Cr.
I App. 1970) (voir dire unavailable; testimony of clerk, district
I attorney, veniremen); Herron v. State, ___Tenn.___, 456 S.W. 2dj! 873 (1970) (defendant preserved only one venireman's testimony 
!j on appeal; court found no error in partial transcript and presumed 
'j that Witherspoon was complied with) .

And other courts have held absence of the voir dire transcript 
; sufficient to affirm a death sentence without any attempt to re- 
!! construct the voir dire. Mathis v. State, 283 Ala. 303, 216 So. I
jj 2d 286 (1968) (voir dire not part of the record on appeal) , rev1 d '
!| sub nom. Mathis v. Alabama, 403 U.S. 946 (1971) ; Swain v. State, j 
| 285 Ala. 387, 232 So. 2d 631 (1970) (voir dire not part of the 
i| record on appeal); Butler v. State, 285 Ala. 387, 232 So. 2d 631 j 
,j (1970) (voir dire not part of the record on appeal) ; Richardson 
:i v. State, 247 So. 2d 296 (Fla. 1971) (defendant failed to ask that j 
voir dire be recorded; court presumes Witherspoon was complied 
with since trial was post-Witherspoon) ; State v. Forcella and 
Funicello, 52 N.J. 238, 245 A. 2d 20 (1968)(voir dire not a part 

1 of the record) rev'd sub, nom. Funicello v. New Jersey , 403 U.S.i 
948 (1971); Joseph v. State, 442 S. W. 2d 123 (Tex. Ct. Crim.App. 
1969) (defendant failed to ask t hat voir dire be recorded) ; David 

j* v. State, 453 S. W. 2d 172 (Tex. Ct. Crim. App. 1970) (defendant 
,1 failed to ask that voir dire be recorded) ; Tea v. State, 453 S.W.
• 2d 179 (Tex. Ct. Crim. App. 1970)(defendant failed to ask that 
!l voir dire be recorded) .

i



/
I

'! FlrSt' the State has sou9ht to reconstruct what happened at the 
voir dire examination by the "prob[ing] of murky memories,"

! (Boykin v. Alabama, 395 U.S. 238, 244 (1969)) of events two
and one-half years past. Compare Draper v. Washington. 392 U.S.
487, 497 (1963), Gardner v. California. 393 U.S. 367, 369-370
(1969). second, the evidence that does appear is clearly in
conflict. Defense counsel's notes indicate that some persons

24/
were excused for "fixed opinion;" and, in at least one place 
in these notes, there is an indication of possible Witherspoon 
error. Third, the evidence that no Witherspoon error occurred 
is itself constitutionally suspect,based as it is solely on the 
recollection of the prosecutor and trial court who were not with­
out interest in the outcome of the proceedings .^Compare Draper 
v. Washington, 372 U.S. 487, 498-499 (1963), Eskridge v. Washing­
ton ,, State_Board, 357 U.S. 214, 216 (1958). Fourth, the findings 
of the trial judge are based in part upon his own recollection, 
asserted without oath or cross-examination. Fifth, those findings' 
are mere conclusory judgments in a form whose opacity immunizes j
them against appellate review. 6 see Draper v. Washington. 372 
U.S. 487, 498-499 (1963). j

iliciththe°coL?nUrt S^ g?t questioning defense counsel to "f - ■ C nclusion that only veniremen were excused who showedfixed opinions as to guilt or innocence." (Remand Tr 18 1 E v e n
awaSe/;?°rd ShWed that - ”hich “  n ot~“ ls Jourt'is we?? acra^nc^iT1 V^ni^ men are often excused because of their scruples against the death penalty under a test phrased as whether their 
eiiefs would prevent them from returning a "verdict of guilty"

S d ^ / S ln/ labar  carries Wlth it the death penaliy? sle e q ’ 

2^/ This Court has had experience with lower courts' conclusorv i
di“ h T a t were £  s s4rn rr c q/ic /im-it---  --- -‘  ̂e' —  .3 • * Pup less is v. Louisiana. !

So. 2d ial U969P -r-eVerSlna V - 2i42S.a. 2=3 La.-9 9 2, 221 j
I

26/ This Court has noted in a different context that- „r ,, elusion of . . . ra] trial iudae t-hai text that [ t) he con-!p>rro • ,, , . J J ^udge that, there was no reversible
to full anoelf^ 1 oannot be an adequate substitute for the right 
can a f f o r d ^  review available to all defendants . . . who can at lord the expense of a transcript- " pcv >-■; ,, •State Board. ^ 7  rr c o p  _ ^ - ridcIe v. Washington •
o^Hi-trlai ludg“ - he2

38



; I • .  . .  .
I • • *••■• ••j
jlC• The Right to a Transcript of the Voir Dire

The sure way of resolving the Witherspoon issue in this 

| Case a way which would have avoided speculation and conjecture 
j —  was to produce a copy of the original voir dire transcript.
i i
/This Court has long recognized that in many instances the practice ! 
i!of relYing on memories of the participants at a trial may not 
! provide a record of sufficient completeness for review purposes 
11where better evidence is available. See e ^ ,  Draper v. Washington 
l!372 U.S. 487 (1963); Long v. District Court of T o w a. 385 u.S. 192,
I 194-195 (1966). m  Long, this Court indicated a preference for
transcripts as opposed to other accounts of trial proceedings, 
stating:

I '
"The State suggests that there may be j
alternative ways of preparing,for purposes
of-aPpeal, an account of relevant proceedings j
at the trial level . . . .  in the present case I
a transcript is available . . . .  We need not
consider a possible situation where a transcript
cannot reasonably be made available . . . "  ibid.

Significantly, there has been no showing in this case that a
! transcript is unavailable. j
• i 1

A transcript of the voir dire would have left no doubt as i
jlt° whether or not improper exclusions occurred. Where the right 
i at issue is whether the defendant received due process in the 
selection of the jury as guaranteed by Witherspoon, and where the ! 
.factual underpinnings of that right depend on the type of careful 
analysis of the voir dire which Witherspoon requires, the selectijn 
of the 3ury should certainly appear of record. By definition, 
jthe Witherspoon issue is invariably an issue of life or death. 
i'Denial of an adequate transcript in this context is itself a *
J.denial of due process. Cf. Boykin v. Alabama. 395 U.S. 238 (1969); j 
Cgrnley v. Cochran, 369 U.S. 506 (1962).-i '

'26/ (Cont'd.)
the transcript, his only decisive the State has deprived petitioner review.

means of disputing that judgment,' 
of his right to full appellate

- 39 -
I '



I

Some courts have recognized the inappropriateness of
! I
attempting to resolve a Witherspoon claim without a voir dire, 

i  at least where the lack of a voir dire is the responsibility 
of the state. Evans v. State, 430 S. W. 2d 502, 505 (Tex. Ct. 
Crim. App. 1968); State v . Pinkney. Cir. Ct. of Palm Beach, Fla., 

i Crim. No. 2490 (July 9, 1971); see also United States ex rel. 
Weston v. Sigler, 308 F. 2d 946 (5th Cir. 1962). The Supreme

I '
Court of Alabama itself deems transcription of the voir dire

' advisable. See supra, n. 20 and accompanying text. The
importance of a transcript was even pointed out by the trial
court at the remand hearing here:

• "I think that it is elementary . . .  if
anyone on the jury is challenged on a capital 

j case, the record will show it. It is so elementary
that the absence of that showing of a challenge 
of a juror in a capital case to me is affirmative 

j that none were challenged . . . ." (Remand Tr. 30.)i (
Petitioner's court-appointed counsel then urged the court that

■1 ”[a]s the Court said, it is elementary that
whether or not any jurors were challenged 
by the State for cause on the grounds in 

j' question should be contained in the record,
and I can't for the life of me understand 
why on earth the record didn't have it in 

[. there, or why it was left out of the record,
j. or why the entire voir dire examination or
, preliminary questions by the Court weren't

in there, in the transcript. Of course, I 
ii know that the Court Reporter in this circuit

at that time and transcribed the testimony 
is no longer in the State of Alabama, but 
it looks like to me he may be a vital witness 
in this hearing, and if any explanation could 
be made as to why this was not in the record,
I think the defendant is certainly entitled 
to it. (Remand Tr. 30-31.)

No explanation subsequently appears why the voir dire was not 
!' transcribed and produced. The court merely concludes that,
although the burden is on the State to prove compliance with

27/
W-itherspoon, the Court has no doubt that the burden has been

27/ Alabama clearly puts the burden on the State affirmatively 
to prove compliance with Witherspoon. Billingsley v. State.

---- / 254 So. 2d 333 (1971) ; Beecher v. State. ___ AlaT
----- , 256 So. 2d 154, 164-166 (1971) [A. 9a-lla]. This Court
1 has also made plain that a sentence of death will not be carried

40



I  .  ■ • • •- : .

met by the State in this case" (Remand Tr. 31.)
The courts below have thus held that a Witherspoon claim 

li can be rejected solely on the basis of the prosecutor's andI;I ;
the trial judge's recollection as to what transpired at trial

it without the necessity of reviewinq the voir dire testimony or
28/

j! hearing other reliable evidence. Surely, at a minimum, the
t:II

27/ cont'd.
out unless compliance with Witherspoon has been affirmatively 
demonstrated. Mathis v. Alabama, 403 U.S. 946 (1971); Funicello
v. New Jersey, 403 U.S. 948 (1971). See also Marion v. Beto,
434 F. 2d 29, 32 (5th Cir. 1971) cert, denied, 402 U.S. 906 (1971) 
in which the Fifth Circuit Court of Appeals recognized that " [t]h<3 
magnitude of a decision to take a human life is probably unparallel 
ed in the human experience of a member of a civilized society...," 
434 F. 2d, at 32, and that therefore "doubts concerning the 
ability of a venireman to subordinate his personal views to his 
oath as juror to obey the law of the state should be resolved 
against exclusion." 434 F. 2d, at 31. Placing the burden on the 
State is clearly warranted by the nature of the right and the 
respective positions of the parties. Witherspoon protects the 
defendant against being put to death in violation of due process; 
but, even where unsatisfied, Witherspoon never requires the State 
to release the defendant. The State also has greater access to th|e 
relevant evidence and may properly be considered responsible for 
any failure in securing transcription of the voir dire. This woulc. 
seem particularly true in post-Witherspoon trials like petitioner 
where the State has been put on notice as to the importance of 
transcribing the voir dire. By contrast, capital defendants are ' 
usually indigent, represented by court-appointed counsel and 
singularly lacking in the ability to secure a transcript of their ! 
voir dire or other evidence in support of Witherspoon claims.
See infra, p. 43.
28/ Although the voir dire transcript is the best evidence of 
what transpired during the selection of the jury, and should 
certainly be required if available, there are other forms of 
evidence that are better than that adduced at petitioner's 
remand hearing. As suggested by petitioner's court-appointed 
counsel, for example, the court reporter would have been a "vital 
witness." (Remand Tr. 32.) See Mayer v. City of Chicago, 30 L. 
ed. 2d 372, 378 (1971); Draper v. Washington, 372 U.S. 487, 495- i 
496 (1963).

- 41



?q/
conflict in the testimony as revealed at the remand hearing 
here made out "a colorable need for a complete transcript” and 
"the burden . . .[was] on the State to show that only a portion
of the transcript or an 'alternative . . .' [would] suffice
. . . Mayer v. City of Chicago, 30 L. Ed. 2d 372, 379 (1971) .

Finally, petitioner was indigent and could do no more than 
to ask that a copy of the transcript be provided. Had petitioner 
possessed funds to obtain a copy of a transcript, it would have 
been admissible —  at the very least —  to contest the recollec­
tions of the judge and prosecutor. Since petitioner was without 
funds to secure the transcript, the trial judge should have 
honored court-appointed counsel's request to explore the 
feasibility of having the voir dire transcribed. Failure to 
provide the voir dire in the absence of such an exploration 
deprived petitioner of equal protection of the laws. See e.g., 
Mayer v. City |of Chicago, 30 L. Ed. 2d 372, 379 (1971); Gar oner
v. California, 393 U.S. 367 (1969); Entsminger v. Iowa, 386 
U.S. 748 (1967); Long v . District Court of Iowa, 385 U.S. 192 
(1966); Draper v. Illinois, 372 U.S. 487 (1963); Lane v . Brown, 
372 U.S. 477 (1963); Eskridge v. Washington State Board, 357 U.S, 
214 (1958); Griffin v. Illinois, 351 U.S. 12 (1956); see also 
Johnson v. Avek~V. 393 U.S. 483, 486 (1969); United States ex rel,

?g/ Where the parties are in complete agreement as to what 
happened on voir dire, a stipulation may suffice if sufficiently 
comprehensiveTI E.g., Spencer v. Beto, 398 F. 2d 500 (5th Cir.
1968) , cert. ci
434 S. W. 2d 1£3 (Tex. c t .  Crim. App. 1968). See Mayer v. City
of Chicago, 30
372 U.S. 487, 495-496 (1963).

nied, 393 U.S. 1092 (1969); Ex Parte Brvan
L. Ed. 2d 372, 378 (1971); Draper v. Washington,

- 42 -



- I - 1 ' W  •*** ~  <»% jJ\ .. • VV *-■'*♦**'*•'»* ~ ^ *  •*-; » C X »  - v , »  .« ->  i , - > . v'--V. v - ,*•:*•-. yh * r*  ^ A - i v ^ . ' - M C v . V n^ x  c ,***;v r■ w s

Weston v. Sigler. 308 F. 2d 946 (5th Cir. 1963; Pate v. Holman.
341 F. 2d 764, 768 (5th Cir. 1965)("When appeal is a matter of Ilright, as in Alabama, and when an issue on appeal may depend upon 
the evidence, an indigent defendant in a criminal case is en­
titled to a free transcript on appeal.")

Certiorari is particularly appropriate to resolve the 
Witherspoon issue in the present case because of its importance ! 
to the numerous condemned men now housed on the death rows in 
this country. There are many such men under sentence of death 
who have not yet finally litigated claims under Witherspoon v. 
Illinois. Practically all are indigent and many are unrepresent- 

, ed. Many were tried prior to Witherspoon and a good many of the 
rest were tried in States which have since clearly misapplied 
the rule of Witherspoon. E.g., State v. Mathis, 52 N.J. 238,
245 A. 2d 20 (1968), rev'd sub nom. Mathis v. New Jersey, 403 
U.S. 946 (1971). The Alabama Supreme Court's decision in this

f
Beecher case sanctions a practice of handling Witherspoon claims 
in a manner calculated to produce records filled with -- as this

I
one is —  speculation and conflicting testimony. It sanctions 
practices whereby transcriptions of voir dire examinations need nbt 
be ordered even in trials following the date of Witherspoon.

! Whether the State must provide a voir dire transcript to an|j
indigent defendant seeking to challenge the death-qualification i 
of his jury is an issue urgently in need of resolution. Failure J 

; to resolve it promptly can only assure at best a heavy burden II
of complicated proceedings in the federal district courts by

I
reason of the inadequacy of the records on which Witherspoon 
claims are resolved in the state courts. At worst, indecisive- Ii

jl ness on this point can result in the executions of condemned i
!' men who were in fact sentenced to death by a "hanging jury" but j 
!: are barred from proving their right to live because of failure 
j, of the State to provide them with a transcribed copy of their 

voi r dire examinations.
43



CONCLUSION

The writ of certiorari should be granted, and the judgment 
below reversed.

Respectfully submitted,

JACK GREENBERG 
JAMES M. NABRIT, III 
JACK HIMMELSTEIN 
LYNN JONES WALKER 
ELAINE R. JONES

10 Columbus circle
New York, New York 10019

ANTHONY G. AMSTERDAM
Stanford University Law School 
Stanford, California 94305

OSCAR W. ADAMS, JR.
U. W. CLEMON

1630 Fourth Avenue North 
Birmingham, Alabama 35203

Attorneys for Petitioner



APPENDIX
1 a

JOHNNY DANIEL BEECHEP 
v.

STATE OF ALABAMA 
7 Div. 846

Supreme Court of Alabama 
October 7 ,  1971

After Remandment December 9, 
Rehearing Denied January 13,

PER CURIAM.On June 15, 1964. Johnny Darnel Heeeher, a convict, who may hereinafter he referred to as “defendant," "appellant," or "Beech­er, escaped from a road crew in Jackson County while the crew of convicts was building a fence near the right-of-way of a highway. The place front which the de­fendant escaped was about eight-tenths of a mile from the home of Mr. and Mrs. Raymond Chtscnall who lived in the Eabius community. Mrs. Chisenall’s body was found the next day, some distance from her home, in a shallow hole covered with dirt and leaves. Her feet and hands were tied.

1 9 7 1 
1972



- ?a

B EECH ER  v. STATEC ite  »  25C So  2d 154She was Ragged and blindfolded. Experttestimony and other evidence revealed that she met her death by manual strangulation and that she had been raped.While fleeing from Tennessee police o f­ficers near South Pittsburg, Tennessee (which is located near the State line which separates Jackson County, Alabama and the State of Tennessee), Beecher was shot in the leg by a rifle bullet and arrested dur ing the early morning of June 17, 196b He was carried to a hospital in South Pittsburg and given first aid treatment. Evidence depicted his condition when he arrived at the hospital as being in a great amount of pain, he having sustained a gunshot wound in his leg which shattered his tibia. He was given injections of morphine, one intra­venously and one intramuscularly.His leg was not set at the Tennessee hos­pital, but splinted so he could be transported by ambulance tc .Kilby Prison Hospital near Montgomery where he received treatment for his leg that day. Later his leg was amputated.On July 29, 1964, the Grand Jury of Jackson County, Alabama returned an in­dictment against the defendant. He was tried on a count charging him with the first degree murder of Martha Jane Chiscnall, found guilty, and sentenced to death. On appeal, this Court affirmed that judgment on October 6, 1966. Beecher v. State, 280 Ala. 283, 193 So.2d 505.Thereafter, defendant filed in the Su­preme Court of the United States a petition for certiorari to review the opinion and judgment rendered by this Court. The Supreme Court of the United States grant­ed certiorari and on October 23, 1967 re­versed the decision of this Court. Beecher v. Alabama, 389 U .S . 35, 88 S.Ct. 189, 19

Ala. 1 5 7mony on the defendant’s Motion for Change of Venue. The transcript of the evidence taken at said hearing indicates that the State, either before or at the time of the hearing, nolle prossed the original indictment pending against the defendant. At the conclusion of the hearing, the court granted the Motion for Change of Venue, changing the situs of the trial to Cherokee County, Alabama, and scheduling arraign­ment for January 22, 1969, in the Circuit Court of Cherokee County, Alabama. De­fendant was duly arraigned at the appointed time on the indictment of January 18, 1968, and entered pleas of "Not Guilty” and “ Not Guilty by Reason of Insanity.” Trial of the cause was set for E'ebruary 4, 1969.On hebruary 4, 1969, immediately prior to the commencement of trial, the defend­ant filed motions seeking to have the court permit the examination of jurors individ­ually, in groups of six, and in groups of twelve, respectively, outside the presence of the other jurors. The lower court granted the motion to examine the jurors individ­ually, but not outside the presence of the other jurors; overruled the motion to ex­amine the jurors in groups of six; and granted the motion to examine the jurors in groups of twelve.At the conclusion of the trial of the cause on hebruary 5, 1969, the jury returned a verdict of guilty and imposed the death penalty. Judgment and sentence on the same date were in accord with the verdict of the jury.This appeal is perfected under the pro­visions of the automatic appeal statute ap­plicable in cases where the death penalty is imposed. Section 382(1) et seq., Title 15, Recompiled Code 1958; Act No. 249, Gen. Acts 1943, p. 217.L.Ed.2d 35.On January 18, 1968, defendant was again indicted by the Grand Jury of Jack- son County, Alabama, for murder in the first degree of Martha Jane Chisenall.On January 20, 1969, the Circuit Court of Jackson County, Alabama, heard testi-

The defendant was represented in the trial below by three court appointed attor­neys. He is represented on this appeal by one of the same attorneys, as well as by an additional attorney who did not participate in the trial. All attorneys involved in the trial and this appeal were appointed by the trial court.



■<rv* f t .  a

- 3a -

Ala. 256 SOUTHERN REPORTER, 2d 8 ER IES158The defendant's contention in brief com­plains of alleged error on the part of the trial court in admitting into evidence the testimony of Dr. William L. Headrick, Jr., the physician who treated the defendant shortly after his apprehension in Tennessee, concerning inculpatory statements allegedly given by the defendant to. Dr. Headrick at the time of said treatment. The defendant argues that the alleged confession was in­admissible because “ * + * ( 1) the con­fession was given involuntarily; (2) the confession was given while the defendant was in the custody of the police or other­wise deprived of his freedom by the au­thorities and was subjected to questioning without being advised of his constitutional rights as provided for in Miranda v. Arizona, 384 U .S . 436, 86 S .Ct. 1602, 16 L.Ed.2d 694, and later United States Su­preme Court cases.”[1] The ru.2 is well-established that extrajudicial confessions are prima facie involuntary and inadmissible and the duty rests in the first instance on the trial judge to determine whether or not a confession is voluntary, and unless it so appears, it should not be admitted. Duncan v. State, 278 Ala. 145, 176 So.2d 840; and cases therein cited.
[2, 3] A confession is involuntary unless it is “ the product of a rational intellect and a free will.” Blackburn v. State of Alabama, (1960) 361 U .S . 199, 208, 80 S.Ct. 274, 280, 4 I..Ed.2d 242; Davis v. State of North Carolina. (1966) 384 U .S . 737, 86 S.Ct. 1761, 16 L.Ed.2d 895. It is not the product of a rational intellect and a free will if the petitioner’s will to resist con­fessing is overborne. Rogers v. Richmond, (1961) 365 U .S . 534, 81 S.Ct. 735, 5 L.Ed.2d 760. An accused's will can be overborne by pressures engendered by physical or psychological coercion (Rogers v. Rich­mond, supra) or insanity (Blackburn v.

I. and 2.372 U .S .  a t page 307. 83 S .C t .  745.372 U .S .  at pHge 205. 83 S .C t .  a t page748, in  the opening sentence in the op in ­ion M r . C h ie f Ju s t ic e  W arren 's atate-

Alabama, supra). These principles were reiterated in the case of Townsend v. Sain,(1960) 372 U .S . 293, 307, 83 S .C t. 745, 754,9 E.Ed.2d 770, wherein the Supreme Court of the United States stated the following;“ Numerous decisions of this Court have established the standards governing the admissibility of confessions into evi­dence. I f  an individual’s ‘will was over­borne’ or if his confession was not ‘the product of a rational intellect and a free will,’ his confession is inadmissible be­cause. coerced. These standards are ap­plicable whether a confession is the product of physical intimidation or psychological pressure and, of course, are equally applicable to a drug-induced statement. * * * ”Notwithstanding these comments by the United States Supreme Court, we under­stand its holding in Townsend v. Sain, supra, to be limited to two propositions: Did Town­send's petition for habeas corpus allege a deprivation of his constitutional rights?Was the D'strict Court required to hold an evidentiary hearing to determine these con­stitutional questions ? Both questions were answered in the affirmative by the court.1 ,nd 2 It did not establish any novel standard relating to the admissibility of confessions.Townsend’s petition was based upon al­legations : that at the police station he be­came ill from the withdrawal of narcotics and was administered scopolamine (hyoscinc) and phenobarbital, combined, by a police physician; that the drug scopolamine has the properties of a 
“ truth serum.'’ and that the injection pro­duces a physiological and psychological con dition adversely affecting the mind and w ill; that this state removes one from reality, one is not able to see or feel proper­ly, one loses one’s ability to withstand inter­rogation, and produces a physiological and

inent : " T h is  ease, in its  present posture raisin g questions ns to the right to  a jplenary hearing in federal habeas corpus i• • * d e a rly  in d icates the question jbefore the court was procedural. I



•*«.,•• \*if-:. :■> - \tn,> X' W  ».*-.>*»•, .. r*s*- ':.>’!'“rt. 3*̂***i ~ ,*u V  ;

■)-  4 a  -

i»
i|

l
i

|

Ala.v i i e  f t h  4psychological state susceptible to interroga­tion resulting in confessions; and that the 
injection in this cose caused him to confess Townsend also alleged the police doctor 
■ wxltfuUy suppressed this information and the identity of hyoscinc and scopolamine. The respondents admitted that Townsend was entitled to relief if the allegations of his petition are taken to be true.

B E E C H E S  v. STATE
Cite A8 236 So.2d 154“ 0  And where did you see him? 159

"A . In the emergency room at South Pittsburg Municipal hospital.“ Q  What time of day did you see him ?“ A. About 4:45 A.M . on 6/17/64.
„ In the course of its opinion the Supreme Court, in Toumscnd, simply reiterated here­tofore established standards governing the admissibility of confessions into evidence stating that if one’s “ will was overborne" or if ones confession was not “ the product of a rational intellect and a free will,” one's confession is coerced and inadmissible. The opinion then concluded that these standards are as likewise applicable “ whether a con­fession is the product of physical intimida­tion or psychological pressure and, of course, are equally applicable to a drug- induced statement." (372 U .S , at page 307 83 S.Ct. at page 754.)

'V -  Doctor, how long did he stay in your office or in the treatment room there ?A. I am not exactly sure, hut I would guess maybe an hour to an hour and a half.Q. I will ask you if he made a state­ment to you at that time?“ A. Well, we talked.
“Q . All right.“ A. Yes, sir, we talked.

[4] Nevertheless, we do not see tha the court, m its holding, has articulalec any new, different, or unique standard; relating to confessions except to say exist ing standards apply to drug-induced state­ments. So, we must judge the confession in the instant case by the existing standards of voluntariness.

Q  Did you ask him an_> questions about the crime or what all he had done oi did he just make a voluntary statement to you ?A. I am not exactly sure if I asked him specific questions but he told me quite a bit about it.
This brings us to a consideration as to whether the statement Beecher made to Dr. Headrick meets these standards of volun­tariness.A hearing was conducted outside the presence of the jury on the question of the voluntariness of the confession given by defendant to Dr. Headrick at the South Pittsburg, Tennessee, hospital in accordance with Jackson v. Denno, 378 U .S . 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. During the course of such hearing Dr. Headrick testi­fied as follows: r“ 0- I will ask you if you saw Johnny Daniel Beecher on June 17, 1964?“A . Yes, sir, I did.

"Q  Now, you didn’t make any threats or offer him any promises of award (sic) or immunity if he would make a statement to you, did you ?“ A. No, sir.
Q- W hat did he say to you at that time?"A. Well, I guess originally he started off telling me about his life, that hismother had died when he was growing__very young and his father left the family and he had had a rough time all of his life and he had to dig in the ground for roots for food and steal and he got in trouble and what not to exist.



5a -

160 Ala. 256 SOUTHERN REPORTER. 2d SE R IE S“Q  VVhat if anything did he say al)ont seeing Martha Jane (hiscnall, the woman that was raped and killed?"A . Well, he told me he had seen her up on her front porch several times and he had made up his mind no matter what the cost he was going to have some of that. He also told me he raped her three times. He didn't mean to kill her but the people were coming up the mountain wait­ing for—hunting for him and she wouldn’t he quiet and he had to kill her—MR. A R M S 1 R O M  , We move the answer he stricken, Your Honor.M R. BE A t K  : The jury is not here.T H E  CO U R  1 : How much morphine did you give him?“ A. I gave him a quarter of a grain intraveneously tsic) and a quarter of a grain muscularly."T H E  C O U R T ; How did that act on him ?“ A. Relieved his pain. That is an__T H E  C O U R T : What affect (sic) would it have on his mental capacity?"A . Well, morphine will relieve pain and make a patient have a sense of well­being. It doesn’t—unless you get a tre­mendous overdose where it supresses (sic) respiration or makes them uncon­scious—T H E  C O U R T ; This particular case, in your opinion, did he know what he was talking about ?
\nd know the rncan-“ A. Yes, sir."T H E  C O U R T : ing of it ?■‘A. Yes, sir.THE? COURT : Realized it?A. I his dosage was not even lug enough to completely relieve all of his pain.

3- " Q . I w ill ask you. doctor, did you nununifiter treatm ent to him at that tim e? “ A . Yea, air.

T H I. C O U R T  : All right. (To ahead."At this hearing on the voluntariness of this confession (outside of the presence of the jury) the defendant testified that he remembered nothing after the doctor gave him a shot, that the effect of the morphine put him at ease; "it kinda made me feel like I wanted to love somebody; took the pain away; made me feel relaxed” ; and, that the morphine did not make him un­conscious. stating morphine doesn’t make you unconscious. He further testified that he doesn’t know' if he acted normal or not, since he did not remember talking with the doctor after the shots, and that his mind was a blank after the shot.Ur. Headrick also testified that the dos­age of morphine administered was not enough to alleviate all of defendant’s pain, stating he still had pain when they tried to move him ; that he w'as trying to make him comfortable and to relieve his pain.Ur. Headrick, after the lower court ruled that the confession was admissible, and during the presentation of his testimony to the jury, testified that the morphine would not affect Beecher’s mental capacity in any way, unless he became unconscious, stating if he had an overdose, respiration would be affected and he would he unconscious. The doctor testified that he did not give him an overdose and Beecher did not become un- conscious.This is no siation house interrogation by police officers as was the case in Townsend, supra. In fact, it is not clearly established that the doctor even questioned defendant.In one instance, the doctor related: “ I am not exactly sure if I asked him specific questions but he told me quite a bit about it. In another place, the doctor indicated:I think I asked him why he did it.” All this was in the course of treatment of the gunshot wound m the presence only of defendant, the doctor and his nurse,3 and,“ Q  W h a t was th at?" A . l ie  bail a gunshot wound o f the leg nnd the tib ia was shattered and the

I



Ala. 161B EECH ER  v. STATECite as 230 So.2d 154after the doctor had also given him food, water and cigarettes. Further the doctor stated ho had made no arrangements with the authorities to question defendant.4It seems to us that this case hears little factual resemblance to Townsend v. Sain, supra, where a truth scrum was allegedly injected into a defendant at the station 
house by a police surgeon before* questioning 
by police officers.In Townsend v. Sain, supra, the drug administered to Townsend was shown to have been a combined dosage of l j< grain of phenobarbital and grain of hyoscinc. It was alleged that it had not been disclosed that hyoscine is the same as scopolamine or that the latter is familiarly known as “ truth serum.” On appeal in that case the Su­preme Court of the United States stated:* * * It is difficult to imagine asituation in which a confession would be

leg was cleansed and the leg was packed w ith gauze and he w as given a tnedira tion fo r pain and the wound wrapped and "trapped so lie could he transported.“ Q . W h a t kind of m edication did you give him ?" A . M orphin e.* * * * *“ Q . W a s anybody there besides you and your nurse and the defen dan t?“ A . A t  one tim e there was more peo­ple in the em ergency room but they were cleared from  the em ergency room and dur­ing most o f ou r conversation a fter  the treatm ent had been accom plished it was ju st the nurse and M r . ltoeohcr and I.Q . N ow , did you also give him some food and w ater and cigarettes?‘.'A . Y es, s ir ."4. T Mh, I 1)1 K'l : I >o - did you have any arrangem ents made w ith these policemen to get any in fo rm atio n ?“ A . N"o, sir." T I I E  r O t ’ H T  : F or them ?" A .  X o . sir.I H E  ( O t I t T : Hid this man vol­unteer to make this statem ent to you or was th is in resjKtnse to questions you asked?“ A . 1 was try in g — I would alm ost liketo ta lk  o ff  the record if  I  m ay, if  it is possible. It  doesn't m ake any d iffe r­ence. 1 felt sorry for this m an. H e looked alm ost like an an im al. I was try in g  in the best way th at 1 could to256 So 2d—11

less the product of a free intellect, less voluntary, than when brought about by a 
•Irug having the effect of a ‘truth serum.'* * * ” [ Emphasis supplied] (372 U S. at .107-308, 83 S.C't. at 754.)The defendant has blade no allegation nor presented any evidence in the case under review tending to classify morphine as a 'truth serum,” nor tending to show that morphine produces the same effects as a “ truth scrum." Further, Dr. Headrick testified extensively, in answer to questions propounded by counsel and the court, as to the dosage, mode of administration, and effects of morphine on this defendant. There is nothing in the record that satis­fies this court that the administering of morphine in this case either overbore “de­fendant s will” or that his confession was not “ the product of a rational intellect and a free will.”
m ake him com fortable , o f course, to re­lieve bis paiu . o ffe r  him cigarettes and• ant sort o f th in g to m ake him com ­fo rtab le . H e  hadn't eaten in som etim es Pith* r. I ju st stayed in th e em ergency room and talked to him because he was going to be transferred to K ilb y  P riso n , th a t was the word th at was given to me.I w as not to take hint to the operatin g room and to s ta rt to w ork on his leg." M I t .  R L A t ' K : In  other words, the statem ent he gave you was not- you w-ere not probing h im ?" A . X o , sir. I was not probing him except l w ill ta k e  anybody's history when they come into liiy o ffice . O f course—" M I t .  W E E K S :  D octor, I  believe you stated whether or not you were not sure w hether you asked him sp ecific  ques­tio n s?" A .  I ca n ’t rem ember wlmt m.v com ­m ents were five years ago." M I t . W E E K S :  T h e n , you could have asked him sp ecifically  w h at question s?" A .  I  think I asked him w hy did la*'I<* it . T h a t  is w h at got the th in g  started  as fa r  ns concerning—" T H E  O O l ’ R T : Is  th a t all you re­member you ilid ask him . why ilid you do it?" A .  Y e s ,  s i r ." T H E  ( ’O l ’ R T :  Am i he told you the w hole story th en?“ A . H e  started  back in his childhood and te llin g  us the w hole s to r y .”



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162 Ala. 256 SOUTHERN REPORTER, 2d SE R IE Sl-'J vve arc or tnc opinion that the alile trial judge correctly ruled that the con­fession given by the defendant to Dr. Headrick in the emergency room, considered independently, meets the test of voluntari­ness subscribed to in this State, as well as that proscribed by Federal constitutional provisions.
[6] The defendant further argues that the confession given to Dr. Headrick was involuntary and inadmissible in evidence, based on what the Supreme Court of the United States said in Beecher v. Alabama, supra, relative to confessions allegedly given by the defendant before and after the confession in question. The defendant argues: that the Supreme Court of the United States held the confession alleged­ly given by the defendant, at the time of his apprehension by Tennessee police of*fi- ccrs, was a product of “gross coercion” ; that the confession given some five days later in Kilby Prison hospital to State in­vestigators was also involuntary because there was “ rq break in the stream of events” 5 from the time of the first al­leged confession until the confession at Kilby Prison; that therefore the confes­sion allegedly made to Dr. Headrick, in the interim and within an hour after the defendants apprehension in Tennessee, was made at a time when there was also “ no break in the stream of events," and was therefore involuntary and inadmis­sible.During the first trial of this cause, the State introduced evidence tending to show that the confession given by the defendant to State investigators in Kilby Prison hos­pital was voluntary. No refutative evi­dence was offered by the defendant. The trial court found the confession to lie vol­untary. It was only on the hearing on the motion for a new trial that the defendant testified as to coercive acts of the arresting Tennessee police officers at the time of his apprehension and alleged first confes­sion. The State offered no evidence on

the hearing of the motion for a new trial to refute the defendant’s contentions. In that stale of the record, the Supreme Court of the l mted States rendered its decision in Beecher v. Alabama, supra, based on what that court referred to as “ micontra- dicted facts" pertaining to “gross coer­cion” (in the words of that court) at the tunc of arrest. In that opinion the court found the admission of the confession at Kilby Prison required a reversal.In the trial from which this appeal is Perfected, the lower court heard testimony, outside the presence of the jury, presented by the State tending to show the volun­tary nature of the confession allegedly giv­en by the defendant to Tennessee author­ities at the time of his arrest. This evi­dence showed that after Beecher was shot, he told Chief of Police Dick Burroughs of South Pittsburg, Tennessee, his name was Johnny Beecher and he was the man they were hunting in Alabama.The defendant thereafter took the stand (outside the presence of the jury) to tes tify as to the circumstances attendant to his apprehension and alleged confessions. His testimony was essentially similar to that given at the hearing on motion for a new trial. The defendant contended that he was shot in the leg; that he fell to the ground; that the Chief of Police came up with a gun in his hand and asked, "W hy did >ou kill that white woman?” ; that the Police Chief placed the pistol on his nose; that another law officer fired a rifle by the side of his car; that he then admitted raping and killing Mrs. Chisenall.Police Chief Dick Burroughs, South Pittsburg, Tennessee, generally refuted the defendant's version of the circumstances surrounding his confession. He denied ask­ing defendant why he killed the white woman. The police chief said the other officer did fire the rifle but only to signal the defendant’s capture. Although he was not sure about the position of the rifle, Beecher was more than two or three feet
i

5. Se e  C Jew is v. T e x a s , 386 U .S .  707. 87 S .C t .  1338. 18 L.Ed.2<i 423 (1967).
II



Ain 1G3BEECH FR  v. STATECite i'i« So.2d 1Maway when the rifle was fired; and the rifle was “not down right at the head of the defendant.” lie  also denied making any threats to the appellant. Chief Bur­roughs testified he did not put a pistol on defendant's ncse, nor did anyone else.The State did not offer this confession in evidence, hut the trial judge did admit the confession to Dr. Headrick. Prior to the trial judge’s ruling allowing the Dr. Headrick confession to go to the jury, de­fense attorneys assigned the "no break in the stream of events” contention as an ob­jection. From the record it is clear that tile trial judge considered this contention. The “no break in the stream of events” contention was buttressed by so-called “ un­contradicted” facts in the first trial, but in this trial this was not true. This court holds that the "no break in the stream of events” contention in this instance is with­out merit.The defendant’s second major contention is that the confession allegedly made to Dr. Headrick was inadmissible for failure of the authorities to comply with the re­quirements of Miranda v. Arizona, supra.
[7] What this court said in Tntex v. State, 282 Ala. 191, 210 So.2d 424, wherein the defendant had made an inculpatory statement to a Mrs. Kendrick without the benefit of the so-called Miranda warnings, is dispositive of the defendant’s conten­tions herein:“ The objection to this testimony rests in the contention that Mrs. Kendrick- failed to apprise the defendant of his constitutional right to remain silent. We are constrained to agree with the Su­preme Court of Nevada that the sub­stance of Escobedo v. State of Illinois, 878 U..S. 478, 84 S.Ct. 1758, 12 E.Ed.2d 977 (1964) and Miranda v. State of Arizona, 384 U .S . 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) have no applica­tion when confessions or admissions oth­erwise admissible are given to persons who are not officers of the law nor

their agents. Schaumberg v. State, 83Ncv. 372, 432 P.2d 500 (1967).’’See also Anno.: “ What Constitutes ‘Cus­todial Interrogation' Within Rule of Mir anda v. Arizona Requiring That Suspect Be Informed of His Federal Constitutional Rights Before t ustodial ^Interrogation,” 31 A.L.R.3d 565, and particularly the cases un­der Section 26 entitled, “ Doctors or Nurses,” starting on page 669.In response to the defendant's Motion for Change of Venue, the lower court, after a hearing on the motion in open court, granted said motion, changing the situs of the trial from Jackson County to Cherokee County, Alabama. The defendant, in the assignment of error, contends that the fail­ure of the lower court to grant the change of venue to a more remote county consti­tuted error prejudical to the defendant.
[8 ] On an application for a change of venue, and on granting the motion for re­moval, the trial court must decide what is the nearest county free from objection. Section 267, Title 15, Recompiled Code 1958; Patterson v. State, 234 Ala. .442, 175 So. 371, cert. den. Patterson v. State of Alabama, 302 U .S . 733, 58 S.Ct. 121, 82 L.Ed. 567.
[9, 10J The lower court conducted an extensive examination of numerous wit­nesses in seeking to determine if the de­fendant could obtain a trial in Jackson County, Alabama, free from prejudice. In its examination, the lower court heard evi­dence not only as to any prejudice existing in Jackson County, but also as to prejudi­cial effects, if any, in nearby counties to which radio, television and newspaper cov­erage extended. The mere fact that such publicity has been dispersed does not, in itself, mean that a defendant cannot get a fair trial. Mathis v. State, 283 Ala. 308, 216 So.2d 286. reversed as to death sen­tence on other grounds and remanded to Supreme Court of Alabama for further pro­ceedings. 403 U .S . 946. 91 S.Ct. 2278, 29 L.F.d.2d 855. Mrs. Chiscnall met her death



4

:•  . C W .  «

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164 Ala. 256 SOUTHERN REPORTER, 2d SERIESon June 15, 1964. The order moving the trial to Cherokee County, which is not an adjoining county to Jackson County, was dated January 20, 1969. YVe are of the opinion that the lower court did not abuse its discretion in granting the change of venue from Jackson County to Cherokee County, Alabama.
[11] During the course of the trial, three black and white photographs were in­troduced into evidence by the State. The photographs depicted the deceased’s body as first discovered, on a stretcher after re­moval from the shallow grave, and in the coroner's office, respectively. Each of the photographs met the test of having some tendency to prove or disprove a disputed or material issue, to illustrate or elucidate some other relevant fact or evidence, or to corroborate or disprove some other evi­dence offered or to be offered, and was not improper. Baldwin v. State, 282 Ala 653, 213 So.2d 819.[12] The lower court permitted, over the defendant’s objection, the State Toxi- cologist to testify concerning the condition of the deceased’s genital area. Such evi­dence. in addition to being part of the res gestae, tends to shed light on the acts, mot.ve ai d intent of the defendant at the time of the offense and was properly ad­mitted. Smarr v. State, 260 Ala. 30, 68 So.2d 6 ; Garner v. State, 269 Ala 531 114 So.2d 385. ’

jurors. This was without error. Jurors may be qualified on voir dire in groups at the discretion of the court. Seals v. State 282 Ala. 586. 213 So.2d 645; Aaron v! State, 273 Ala. 337, 139 So.2d 309, cert dem 371 U .S. 846, 83 S.Ct. 81, 9 L.Ed.2d K2. The defendant was not entitled to examine each prospective juror.outside the presence of the other jurors. Seals v. State, supra. «[17] The defendant assigns as error his removal from Tennessee to Alabama with­out first having been taken before a magis­trate in Tennessee and without having signed a waiver of extradition as required by law- Thc transcript of the evidence shows that the defendant did sign a waiver of extradition prior to being removed from the State of Tennessee. Further, the testi­mony of Dr. Headrick tends to show that, at the time the defendant signed the’ waiver of extradition, his (the defend­ant’s) mental faculties were in no sense impaired to the extent that he was not cognizant of what he was doing. We fail to find any infringement of the de­fendant's constitutional rights. State or federal, in the procedure followed relative to his removal from Tennessee to this State shortly after his apprehension.

[13, 14] Thc defendant’s contention that the statements made to Dr. Headrick and related by the latter in his testimony are privileged is without merit. As communi­cations to physician or surgeon by a patient or one seeking professional advice are not privileged under common law, no such privilege exists in Alabama, 111 the ab­sence of a statute creating it. Dyer v. State, 241 Ala. 679, 4 So.2d 311. There is no such statute in Alabama.[15,16] The lower court overruled the defendant’s motions to examine the jurors individually and in groups of twelve re­spectively, outside the presence of the other

Mindful of our duty in cases where the death penalty is imposed, we have reviewed the entire record thoroughly for error, whether assigned or not. We have com­mented herein on most of the numerous as­signments of error set forth by the defend­ant. The others we find to be palpably without merit and pretermit any discussion thereof.A majority of the justices concur in thc above opinion, namely, S IM P S O N , M FR - IH1.L , C O L E M A N , H A R W O O D  B L O O D W O R T H . M A D D O X  and Mc- C A L L , J J .
H E F L IN , C. J . .  and L A W S O N , J . ,  dis­sent.However, a majority of the Justices are of the view that because of the impact of



10a

B EECH ER  v. STATE Ala. 1(J5C ite  «* 25fl S o .2d 154recent decisions of the Supreme Court of the United States, this case must he re­manded to the lower court for further pro­ceedings as herein set forth. Chief Justice Heflin and Justice Lawson concur in the view that this case must he remanded, though adhering to their conclusions that this judgment should he reversed, their con­clusions in this regard living set forth in the dissenting opinion of Chief Justice H e f­lin.We note that the record does not contain a transcript of the proceedings when the jury venire was qualified. Therefore, we arc unable to determine whether the jury which convicted Beecher was constitution­ally selected. The appellant does not dis­cuss in brief on appeal any infirmity in the jury qualifying process.
[18] Previously, this court would not normally review the question of the quali­fications of the jurors unless an objection was made to the procedure, or unless an allegation was made in a post-conviction proceedings that the procedure was consti­tutionally irregular and prejudicial, mak­ing the imposition of the death penalty im­permissible.In Mathis v. Alabama, 403 U .S . 946, 91 S.Ct. 22/8, 29 I..Ed.2d 855, Mathis had been convicted and sentenced to death. His conviction w'as reviewed by this court and affirmed (280 Ala 16, 189 So.2d 564(1966)). The Supreme Court of the Unit­ed States denied certiorari (386 U .S . 935, 85 S.Ct. 963, 17 L .Ed .2d 807). Mathis there­after filed a petition for Writ of Error Coram Nobis in the Circuit Court of Coffee County, and although he alleged several grounds of error with regard to the selection of the trial jury, he made no claim of error with regard to the qualification of the jury pertaining to their opinions as to capital punishment. This court affirmed the trial court's denial of Mathis' Writ of Error Coram Nobis (283 Ala. 308, 216 So.2d 286 1968)). Mathis then filed a petition for certiorari to the Supreme Court of the United States wherein he claimed for the

first time that the jtiry venire was not qual­ifier! properly and in accordance with the requirements of Witherspoon v. Illinois, 391 U .S. 510, 88 S .Ct. 1770, 20 L.F.d.2d 776. The Supreme Court of the United States granted the Writ and reversed the judg­ment insofar as it imposed the death sen­tence. 403 U .S. 946, 91 S.Ct. 2278, 29 L.Ed. 2d 855. Only a memorandum opinion was issued by the United States Supreme Court, citing Witherspoon, supra; Maxwell v. Bishop, 398 U .S. 262, 90 S .Ct. 1578, 26 L.Ed. 2d 221 ; Boulden v. Holman, Warden, 394 U .S . 478, 89 S.Ct. 1138, 22 L.F.d.2d 433.In accordance with the mandate of the Supreme Court of the United States, this court remanded the cause to the lower court with instructions to conduct a hearing to determine whether or not those jurors who had stated that they had “ fixed opinions” against capital punishment could neverthe­less consider the evidence and instructions of the court and return a verdict of guilty although that verdict could result in a death penalty.As we interpret the action of the Su­preme Court of the United States in Mathis, supra, it would appear that implicit there­in is that the constitutional validity of a jury imposing the death penalty can be raised for the first time in a petition for certiorari to the Supreme Court of the United States.
[19] Both the original trial record and the record on appeal of the Writ of Error Coram Nobis in the Mathis case w ere silent as to whether jurors may have been ex­cused because of their opinion about cap­ital punishment. The record in this case, as before stated, is likewise so silent. Therefore, we find ourselves in the posi­tion of being aware that the Supreme Court of the United States will not permit the imposition of the death sentence unless an affirmative showing is made in the rec­ord that the requirements of IVitherspoon have been met. This court has already recognized that in view of the Witherspoon doctrine, trial courts should make certain



11a

166 Ala. 256 SOUTHERN REPORTER, 2d SE R IE Sin capital cases that the court reporter takes full notes from which a transcription can be made of the examination of prospectivetrial jurors, (Liddell v. State, 287 Ala. ---- ,251 So.2d 601, decided August 5, 1971). It would undoubtedly prove futile if at this time we should not notice the absence in this record of an affirmative showing that the jury was properly qualified under 
Witherspoon as to their opinions in regard to imposing a death sentence.We conclude that we should not order the sentence of death to be executed until we are satisfied that the jury which im­posed the sentence of death was properly and constitutionally selected.Accordingly, this case is remanded to the Circuit Court of Cherokee County with in­structions that a hearing be conducted with the appellant and his attorneys present, and that the court determine first whether any jurors were challenged because of their a f­firmative answers to a general question as to a fixed opinion against capital punish­ment, and that if any such jurors were so challenged because of their affirmative an­swers to a general question as to a fixed opinion about capital punishment, that such jurors be summoned and examined.This examination of any challenged jur­ors should be directed toward determin­ing whether or not the challenged jurors would have, in view of their affirmative answers as to having fixed opinions against capital punishment, nevertheless consider the evidence and instructions of the court and return a verdict of guilty al­though that verdict could result in a death penalty, if they, being the triers of fact were convinced of the guilt of the accused, and that the facts warranted a sentence of death.The court is further instructed that this hearing be conducted as speedily as is feas­ible, that a full record be made thereof, a transcript of such record be made, to­gether with the court's conclusions from the evidence adduced, and that a transcript

of these proceedings under the seal of the clerk be promptly forwarded to this court.The prisoner will remain in custody until discharged by the due process of law.Affirmed conditionally and remanded for further proceedings.
HF.KL1N, C. J „  and L A W S O N , S IM P ­S O N , H A R W O O D , and M A D D O X , J J . ,  concur in the remandment of this case.
M E R R IL L , C O L E M A N , B L O O D - W O R T H  and M cC A L L , J J . ,  would affirm without remandment.
H E F L IN , Chief Justice (dissenting):
1 must respectfully dissent from the por­tion of the majority opinion concerning the admissibility of the confession. The de­fendant was given J4  of a grain of mor­phine intravenously (directly into the bloodstream) and |4  of a grain intramus­cularly before he confessed. He was in a great deal of pain when he arrived at the hospital. The doctor testified that his leg was nearly shot off. It is obvious from evidence that Mr. Beecher was in a serious physical condition and under the influence of morphine when the confession was giv­en.I differ with the majority opinion in its interpretation of the holding in Townsend v. Sain. 372 U .S . 293, 83 S.Ct. 745, 9 L .Ed. 2d 770. In my opinion this case extends to narcotic affected confessions the principle that a confession is involuntary unless it is "the product of a rational intellect and a free will” (Blackburn v. State of A la­bama, 361 U .S . 199, 80 S .Ct. 274, 4 L.Ed.2d 242). While T ownsend v. Sain, supra, may not articulate a new, different and novel standard, it helps to clarify an area of con­fused thinking pertaining to the admissi­bility of confessions when narcotics are in­volved. In very clear language it holds that the requisite voluntariness of a con­fession is not established if the evidence only satisfies the “ coherency” standard.



12a

B EECH ER  v. STATE Ala. 1(J7C ite  as 256 So.2d 154The fact that the defendant was mentally coherent at the time he confessed is not sufficient. As I interpret this case not only must mental coherency he established but all aspects of narcotic influence must be considered before a confession is accepted as the “ product of a rational intellect and a free will” .At first glance, one could be misled by the opinion in Townsend v. Sain, supra, to believe the only reason the Supreme Court of the United States remanded the cause for an evidentiary hearing in the habeas corpus proceeding was because of the possi­bility that the “ truth serum” had been used to procure the confession. However, there were other reasons for the requirement of such evidentiary hearing on remand- ment, one of which was that the record in and the opinion of the Illinois Supreme Court in People v. Townsend, 11 111.2d 30, 141 N.F..2d 729, 69 A.L.R.2d 371 (the direct appeal State opinion involved in Townsend v. Sain, supra) did not reveal indicia that the Illinois courts applied the proper stand­ard of federal law in ruling upon the ad­missibility of the confession in that case.In reviewing the evidence in the instant case in its most favorable light for the State, it merely showed that the defendant knew what he was talking about; knew the meaning of what he said ; realized what he was saying; and the morphine did not affect his mental capacity. In comparing this with the evidence in People v. Town­send, supra, the conclusion is inescapable that the evidence was far stronger for the establishment of a prima facie case of vol untarincss in that case than in the instant case. The following summary of the evi­dence concerning the influence of drugs appears in People v. Townsend, supra:* * * * *  f) lc mcdical evidence is, hon- 
cver, that defendant's use of drugs would 
not have caused an impairment of his 
mental processes or rendered him m 
eapahlc of knowing the purpose and eon 
sequences of a confession. Likewise tin psychiatric evidence relative to defend

ant’s low intelligence quotient was that he was sane and thus capable of distin­guishing between right and w*rong. With these factors eliminated, the resolution of whether defendant possessed the requi­site mental powers and freedom at the time he confessed must depend upon a determination of whether the injection of phcnobarbital and hyoscine given to treat his illness had the effect of then depriving him of his faculties.“ When defendant testified during the inquiry into his confession, he main­tained that, prior to the injection, he had consistently denied any knowledge of Boone’s death. However, within a few minutes after the injection, according to defendant, his vision became blurred, his memory failed him, he could hear people talk but could not understand or recog­nize them, he answered questions with­out knowing why, he couldn’t hold his head up, and his only sensation was that he wanted to sleep. He professed not to have any recollection of giving a state­ment to the assistant State’s Attorney and, while he recalled going to the lat­ter’s office and signing some papers on the day following the injection, he testi­fied his mental confusion continued to a degree that he did not know what he was signing.“ To support the defendant’s testimony, and to rebut intervening evidence given by the police surgeon, the defense called Charles Proctor who qualified as an ex­pert pharmacologist and toxicologist with extensive experience as a teacher and a chemist. In answer to a hypo thetica! question which encompassed all the facts relating to defendant’s habits and the circumstances of -his confession, this v,iiness expressed the opinion that the injection given would have caused defendant to suffer from drowsiness and apathy on one extreme, to complete dis­orientation ami excitation on the other. When commenting upon the properties of hyoscine the witness stated that further effect*., from the manner in which it was



13a

256 SOUTHERN REPORTER, 2d SE R IE S168 Ala.employed here, would be an impairment of vision and the loss of memory for occurrences during the period the drug remained active in the body. This period, he estimated, would commence 10 to 15 minutes after injection and would last for a period of five to eight hours. When cross-examined he revealed he had never actually seen the effects of hyoscine on a human and admitted that he was un­familiar with its use in treating drug ad­dicts.“ In almost direct contradiction to Proctor’s testimony, the police surgeon, 
who stated that the medication was given 
to relieve and pacify the defendant, tes­
tified it would not cause a person to go to sleep, would not impair the eyesight, would not cause a loss of memory and 
would not cause an impairment of men­
tal condition. Nor would such results occur, he stated, even though defendant had actually taken the four phenobarbi- tal pills immediately after the injection. These opinions of the surgeon, it appears, were base,..1 on 14 years experience with narcotic addicts, during which he had treated some 3,000 cases of withdrawal reactions in the same manner as he had the defendant. On cross-examination, while admitting that excessive or pro­longed use of phenobarbital or hyoscine could cause different results, he re­
mained firm  in his opinion that the dos­
age given defendant woidd have none of 
the effects related in the latter's testi­
mony. Corroborating the testimony of 
the surgeon was that of the officers pres­
ent, and the assistant State's .Attorney, 
to the effect that defendant was not 
sleepy or drozvsy after the injection, that he had no apparent difficulty with his eyesight, and that he answered questions 
put to him clearly and coherently.

“ On the basis of the evidence set forth, 
the trial court found the confession was 
voluntarily made and denied defendant's motion that it be suppressed as evidence. This decision of the court is now as­signed as error.” (Emphasis supplied)

The Supreme Court of the United States in Townsend v. Sain, supra, was not con­vinced that the proper federal standard of voluntariness was satisfied by expert testimony that the drugs would not cause “an impairment of mental condition” , or “ that defendant’s use of drugs would not have caused an impairment of his mental processes.’’ Likewise, it is obvious that the proper federal standard of voluntari­ness cannot be satisfied from the testi­mony of Dr. Headrick. It must be con­cluded that expert testimony to the effect that a drug did not cause an impairment of the mental process or have any effect on mental capacity merely goes to estab­lish “coherency” and there must be fur­ther evidence that the confession was the product of a rational intellect and a free will in all aspects before it is admissible.Testimony directed towards the effect of narcotics in connection with resistance to confessing or willingness to confess is es­sential. The words of Justice Goldberg in his concurring opinion in Townsend v. Sain, supra, aid in explaining the type of proof required:“The petitioner may have been fully aware of what he was doing in con­fessing and may have suffered no loss of memory, but that is not the issue. The crucial question, and the measure of evidentiary propriety under the Consti­tution, is whether the drug—whatever label was or was not affixed to it— so overliore the petitioner’s will that he was unable to resist confessing. Wheth­er or not he was conscious of what he was doing, the petitioner could, because of the drug, have been wholly unable to stop himself from admitting guilt.”The following language of Justice Frank­furter in Culombc v. Connecticut, 367 U .S . 568, 81 S.Ct. I860, 6 L.Ed.2d 1037 was helpful to a federal district court in reach­ing its decision in Logner v. State of North Carolina, 260 F.Sttpp. 970, where a drug- infcctcd confession was involved:"No single litmus paper test for con­stitutionally impermissible interrogation



* * *
Ala. 1 6 9BEECH ER  t. STATEhas been evolved * * * [t]he ulti­mate test remains * * * the test of voluntariness. Is the confession the product of an essentially free and un­

realized that many state cases cited there­in have been indirectly overruled by Town­send v. Sain, supra.constrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process. Rogers v. Richmond, 365 U .S . 534, 81 S. Ct. 735, 5 L.Ed.2d 760. The line of dis­tinction is that at which governing self- direction is lost and compulsion, of what­ever nature or however infused, propels or helps to propel the confession.”Explaining a portion of the holding in Townsend v. Sain, supra, the Supreme Court of California, speaking through the language of Chief Justice Traynor in In Re Cameron, 68 Cal.2d 487, 67 Cal.Rptr. 529, 535, 439 P.2d 633, 639, stated:

In analyzing the standard that must be followed by federal and state courts alike, pertaining to narcotic-affected confessions,' it is necessary that not only must there be sufficient proof that defendant possessed a ‘‘coherent” mental condition at the time of confessing, but the state must also es­tablish that the confession was “ the product of a rational intellect and a free will” (Blackburn v. Alabama, supra), or stated another way, in the language o f Justice Frankfurter in Culombe v. Connecticut, su­pra, “ the product of an essentially free and unconstrained choice of its maker” , by evi­dence which shows that the defendant’s will to resist confessing was not overborne. Rogers v. Richmond, 365 U .S  534 81 S Ct. 735, 5 L.Ed.2d 760.
“ * * * An accused’s will can beoverborne * * * by the influence of a drug * * * that jmpajrs his ability toexercise his rational intellect and free will. I f  an accused’s will is overborne because of .mpairment of his ability to exercise h,« rational intellect and free will, it is immaterial whether that im­pairment was caused by the police, third 

persons, the accused himself, or circum­
stances beyond anyone’s control. * * ” (Emphasis supplied)In connection with the matter of drugs, mental conditions, states of mind, confes­sions and other related matters, see article by Leon M. Despres entitled, Legal Aspects of Drug-Induced Statements, 14 U. of Chi­cago L.Rev. 601 ; article styled Medication As A Threat To Testamentary Capacity by David J .  Sharpe, 35 N.Carolina L.Rev. 380; and article captioned Intoxicated Con­fessions: A New Ilaven in Miranda? by Ozro William Childs IV , 20 Stanford L. Rev. 1269. See also Annotation: “ Use or Administration of Drugs or Narcotics as Affecting Admissibility of Confession", 69 A .L .R .2d 384. However, it must be256 So 2d— l lV i

These -standards are stated in broad gen­eral terms, for each confessionary act must be judged on its own peculiar set of cir­cumstances. When narcotics are involved the following may have relevance: eu­phoria (a feeling of well-being or elation), loss of anxiety, loss of inhibitions, loss of resistance to free expression, etc. On the other hand, willingness to confess may be controlled by other tendencies, unrelated and unaffected by the narcotic. Many in­dividuals arc motivated by religious back­grounds or remorseful attitudes which mili­tate toward free expression following un­usual stressful experiences. The motiva­tion to purge one’s soul o f an awesome con­science-hurting experience often compels a confession. Certainly inquiries before the trial judge should include the following which are listed numerically but without intended priority :1 Dosage of the narcotic (whether normal, less than normal, or more than normal) and its effects upon individuals.2. The time it takes for the narcotic to take effect and the time relation-



I ft H r  A — t» • - >  ■-* »■ * - ■ ' ' ? C , V t . *T V  v; l> - * r ; V f  V . > \ J K

- 15a

170 Ala. 256  SOUTHERN REPORTER, 2d SE R IE Sshlp of the inculpatory statement and the effect of the drug.If the influence of the narcotic is established, then it should he deter­mined whether the dr..* created in the defendant a state of mind caus­ing one or more of the following:fa) Euphoria:(b) Loss of inhibitions;

4.

(c) Eoss of anxiety;(d) Loss of resistance to free ex­pression, particularly concerning participation in a crime;(e) A  susceptibility to suggestions and/or interrogation;If such narcotic did create in the defendant’s state of mind one or more conditions listed above under “3.", was such condition of such signifi­cance as to cause his will to be over­borne.5. Did the defendant possess on the oc- cas.bn tendencies or motivations un­related to a drug, wLich compelled the confession.While the above list of inquiries is cer­tainly not comprehensive, I hope that, nev­ertheless, they provide some insight to the problems in this area. I am of the opin­ion that a trial judge must look to all rele­vant factors, whether attendant to the in- "ence of the drug or not, and give due consideration and weight to such in reach­ing his determination of the involuntari- riess or voluntariness of any alleged‘con- ession, bearing in mind that the burden of proof is on the State.Possibly the majority opinion may be un­derstood as holding that the drug aspect of
'• I t  is interest bur to note th at i.rcordi.ur t» tuioilm nn mul (Jilm nn. T h e H n r  '■ nploKiral basin  „ f  T h e ra p eu tics, pave 191, in ab ility  to concentrate, d iffic u lty  m m entation, am i apathy are produced |,v m oderate am ounts o f m orphine to4  o f a (train) ns well as euphoria. d r o w  Stness, loss o f anxiety  and inhibition

Townsend v. Sain, supra, applies only to a ruth serum” drug. I f  so, such would be vary erroneous. In reversing the first appeal case pertaining to a confession al­legedly made by the defendant Beecher in K '" ,y ' nson «  five days after hts ar­rest ,n Tennessee while being interrogated •y State investigators following an injec- ion of morph,ne. the Supreme Court of C tilted States stated, among other things, Beecher v. Alabama, .189 U S  IS
ofthct, r ,9LEd-2d3sthat atof the alleged confession Beecher was still m pain, “ under the influence of drugs" and at the complete mercy of the prison hospi- al authorities. There can he no doubt that e act that Mr. Beecher was under the influence of morph,ne * at the time he con- essed was one of the factors considered in that review in determining said confession was not characterized by the requisite vol­untariness.I further disagree with the majority opin­ion since it wrongfully places the burden of proof on the defendant. The entire treat­ment by the majority in its opinion of the admissibility of the drug-infected confes-' as wel1 as specific portions thereof compels me to this conclusion.Tb' law of this State is clear that con­fessions are presumed to be involuntary or pruna facie inadmissible and the burden is on the State to show they are voluntary, n a recent case, Harris v. State, 280 Ala 468, 470,; 195 So.2d 521, 523, this Court stated the following:

“ * r * * Wc Tllote from the old caseof Bonner v. State, 55 Ala. 242, where­in the law pertaining to the procedure to he followed in determining the admis­sibility of a confession is accurately set forth :
Kurt her such amount* bring about in­creased ruse of discriminating and m aking decisions. T ins note is supplied not ns supportive evidence for my dissenting opinion for sue!, information was not inn,entC‘ ’0r'1' m''r‘'ly n <m88inK com-



V  *»*"pc • ■ . "ftS. • >rri ’ - *-A’>r .’ . v ■ r - » v  • -A ’ •-/<•

— 1 f>a

‘In that jealous care which the lav exercises at all times in protection of life and liberty; in the tender rogard it pays to human weakness and frailty, it is laid down as one of the cardinal rules o f evidence, that confessions of guilt shall not be received against a prisoner, until it is first affirmatively shown that they were made voluntarily. They are prima facie inadmissible, and the onus rests on the prosecution to repel the im­putation of undue influence. A n y  in­ducement of profit, benefit, or meliora­tion held out; any threat of violence, in­jury, increased rigor of confinement, or any other menace which can inspire alarm, dread, or the slightest fear, is enough to exclude the confession, as not voluntarily made. 1 he law cannot measure the strength of human fortitude or will to resist importunity, persuasion, or proffered alleviation, on the one hand, or threats, no matter how slight, on the other. Hence, to justify their admission, confessions must be voluntary in fact.And the question, whether confessions were voluntarily made or not, is one of law, to be decided by the court, and not one of fact for decision by the jury. When such testimony is offered, pre­liminary proof should fust he made, showing the circumstances under which tin- alleged confession was made, and when desired by either party, the court, before admitting tin evidence, should hear the testimony offered on each side, and from it determine whether the tes­timony establishes the fact that the con fession was voluntarily made. * * * •See also Duncan v. State, 278 Ala. 145,176 So.2d 840; Sanders v. State, 278 Ala. 455, 170 So.2d 35; White v. State,260 Ala. 328, 70 So.2d 624; la.gan v. State, 251 Ala. 441, 37 So.2d 753; Ta>- lor v. State, 42 Ala.App. 634, 174 So 2d 795."Because the confession by the defendant to Dr. Headrick in the case at bar fails to meet the necessary standard of voluntari­ness as required by this Court’s decisions and controlling decisions of the Supreme

BEECHER v. STATECite an 256 So.2d Ain. 171Court of the United States, as now extend­ed by Townsend v. Sain, supra, to drug- affected confessions, I am of the opinion the case should be reversed.L A W S O N , ] ., concurs in the forego­ing dissenting opinion of H E F L IN , C. J.



After RemandmentP E R  C U R IA M .In our opinion in this case we conclud­ed that no error infected the trial of this appellant. However, the record was silent as to whether any jurors had been chal­lenged by the state for cause on account of any affirmative answer they may have given to the general question propounded during the qualification of the jurors as to whether any of them had a fixed opin­ion against capital punishment.Accordingly, we remanded this cause to the lower court to determine, first, whether any jurors had iieen challenged on the above mentioned ground, and second, whether in the event a juror had been challenged by the state and excused because of an a f­firmative answer to the general question, would such juror nevertheless consider the evidence and instructions of the court and return a verdict of guilty although such verdict could result in the death penalty.This procedure was to determine whether the doctrines enunciated by the United States Supreme Court in Witherspoon v. Illinois, 291 U .S . sill, HR S.Ct. 1770, 20 L.K.d. 2d 776, and Roulden v. Holman, W aiJen. 204.U .S . 478, 89 S.Ct. 1128, 22 L.Ed.2d 422. had been complied with.tPursuant to the directions contained in our order of remandment, the lower court, on 21 October 1971, conducted a hearing • for the purjrose of making the determina­tions directed in the order of remandment.The appellant, attended by his counsel, lion. Morgan Weeks, and Hon. Thomas Armstrong, and Hon. John T. Black, District Attorney for the Ninth Judicial Circuit, and Hon. Bert T . Latham, Assistant



18a

256 SOUTHERN REPORTER, 2d SE R IE S172 Ah,District Attorney for said circuit, were present at the hearing.Mr. Black, being examined as a witness by Mr. Latham, testified that he solely had conducted the prosecution of the appellant at the trial which resulted in the appellant’s conviction. Among the questions addressed to the venire by Judge Newtor B. Powell, presiding at the trial, in qualifying the jury, was whether any of the jurors had a fixed opinion against capital punishment.Mr. Black testified unequivocally that not a single juror was challenged by the state for cause, either because of their answers to the question as to their belief in capital punishment, or for any answer to other qualifying questions.Mr. Weeks and Mr. Armstrong in behalf of the appellant testified to the effect that their notes made in connection with the trial, and which they had with them, in­dicated that some of the jurors had been challenged, their jury sheets showing a notation “ fo", cause” by certain jurors’ names. However, they themselves had chal­lenged some of the jurors for cause be­cause such jurors had asserted a fixed opinion of appellant’s guilt, and their notes did not indicate who had imposed the chal­lenges indicated by their notations on the jury sheet. Neither could say that the state had challenged any juror for cause because they could not remember such happening, and everyone was being careful “about Witherspoon” at the time of the trial.Judge Powell, who presided at appellant's trial, and at the hearing on remandment, stated at the conclusion of the hearing that “ the District Attorney advised the trial judge that he would not challenge anyone on the theory that they would not convict if the death penalty was involved. The Witherspoon case was not very old at the time, and there was some question about it, and, * * * thc court recalls that no one was challenged because of the capital punishment issue.”[20] At the conclusion of the evidence and after arguments of respective counsel,

the court entered a judjro«nt finding, (1) that no juror had beeh challenged by the Stat« of Alabama for any cause, and (2) that no juror was challenged by the State of Alabama because of a fixed opinion against capital punishment.The findings by the court are over­whelmingly supported by the evidence. Such facts preclude any possible application or operative influence of the doctrine enunciated in Witherspoon and Bouldcn, supra.H E F L IN , C. J . ,  L A W S O N , M E R R IL L , C O L E M A N , H A R W O O D , B L O O D - W O R T H , M A D D O X , and M cC A L L , J J „  concur in the opinion after remandment.A majority of the Justices would now affirm  the judgment.Affirmed.M E R R IL L , C O L E M A N , H A R W O O D , B LO O D W ’O R T H , M A D D O X  and M cC A L L , J J . ,  concur.H E F L IN , C. J „  and L A W S O N , J „  dis­sent as to affirmance and adhere to the views expressed in the opinion of H E F L IN , C. J . ,  or original deliverance.