Jones v. Alabama Brief for Appellant

    7th Div. No. 20343

IN THE -SUPREME COURT OF ALABAMA

JOHN HENRY JONES, JR.,
Appellant,

v.
STATE OF ALABAMA,

Appellee.

Appeal From The Circuit Court Of 
Jefferson County, Alabama

BRIEF FOR APPELLANT

DEMETRIUS C. NEWTON 
408 North 17th Street 
Birmingham, Alabama 35203

NORMAN C. AMAKER 
JACK HIMMELSTEIN 
ELAINE R. JONES

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



INDEX

STATEMENT OF THE CASE---------------------------------
STATEMENT OF THE FACTS--------------------------------

I. MUCH EVIDENCE SUGGESTING RAPE INCLUDING 
BOTH INCOMPETENT TESTIMONY AND OTHER 
DEMONSTRATIVE AND DOCUMENTARY EVIDENCE 
SUGGESTING RAPE WAS ALLOWED IN APPELLANT'S 
TRIAL FOR ROBBERY----------------------------

II. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN
THE VERDICT IN FACT AND LAW------------------
A. There Was Variance Between The Indict­

ment and The Evidence--------------------
B- Admission Allegedly Made By Appellant Uhder Extremely Coercive Circumstances 

Before Being Charged With The Crime 
Of Robbery Was Admitted Into Evidnece----

III. THE VOIR DIRE IN EXCLUDING VENIREMEN SCRUPLED AGAINST THE DEATH PENALTY DID NOT SUBSCRIBE 
TO THE GUIDELINES PROVIDED IN WITHERSPOON v. 
ILLINOIS-------------------------------------

PROPOSITIONS OF LAW----------------------------------
ARGUMENT

I. APPELLANT'S CONVICTION SHOULD BE REVERSED 
BECAUSE THE COURT ERRED IN ADMITTING 
EVIDENCE SUGGESTING RAPE AND ASSAULT 
WITH INTENT TO MURDER WHICH WAS EXTREMELY PREJUDICIAL AND INFLAMMATORY IN APPELLANT'S 
TRIAL FOR ROBBERY-------------------------
A. Evidence Suggesting Rape and Assault

With Intent to Murder Should Have Been Declared Inadmissible Because 
Such Evidence Was Not Embraced in 
Appellant's Indictment For Robbery----

B. The Evidence Was Extremely Prejudicialand Inflammatory, Thus Constitutes 
Reversible Error----------------------



Page
II. IN THE ALTERNATIVE THE JURY SHOULD HAVE 

RECEIVED AN INSTRUCTION THAT EVIDENCE 
SUGGESTING OTHER CRIMES SHOULD ONLY GO 
TO THE QUESTION OF GUILT AND NOT TO THE 
ISSUE OF PUNISHMENT. APPELLANT SUBMITS 
THE COURT"S FAILURE TO GIVE SUCH AN INSTRUCTION CONSTITUTES REVERSIBLE ERROR------

III. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN 
THE VERDICT OF GUILTY OF THE CRIME OF ROBBERY BOTH IN FACT AND IN LAW. THEREFORE, 
APPELLANT'S CONVICTION MUST BE SET ASIDE------
A. There Was Variance Between The Indict­

ment and the Evidence---------------------
B. The Introduction Into Evidence of the Incriminating Highly Prejudicial Admission 

(R. 244-53) Allegedly Made By Appellant
to Authorities Before Being Apprised of 
the Charges Against Him, and Made Involun­
tarily When He Was Without Counsel Violates 
Appellant's Fifth Amendment Privilege 
Against Self-Incrimination. Its Intro­
duction Into Evidence Therefore Constitutes 
Reversible Error--------------------------

IV. APPELLANT'S CONVICTION SHOULD BE REVERSED 
BECAUSE THE EXCLUSION OF PERSONS WITH 
CONSCIENTIOUS SCRUPLES AGAINST THE DEATH 
PENALTY FROM SERVICE ON THE JURY VIOLATED 
THE RIGHTS OF APPELLANT UNDER THE FOURTEENTH 
AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES AND IS CONTRARY TO THE RULE ENUNCIATED 
IN WITHERSPOON v. ILLINOIS--------------------

V. THE ABSENCE OF PROCEDURAL STANDARDS FOR ADMINISTERING CAPITAL PUNISHMENT FOR THE 
CRIME OF ROBBERY PURSUANT TO TITLE 14 §415 OF THE CODE OF ALABAMA WHICH AUTHORIZES 
THE IMPOSITION OF THE DEATH PENALTY FOR THE 
CRIME OF ROBBERY COUPLED WITH THE ALABAMA 
PROCEDURE OF SIMULTANEOUSLY SUBMITTING THE 
ISSUES OF GUILT AND PUNISHMENT TO THE JURY 
IS PROHIBITED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT, THE EIGHTH AMEND­
MENT'S PROHIBITION AGAINST CRUEL AND UNUSUAL 
PUNISHMENT AND BURDENS FIFTH AMENDMENT 
PRIVILEGES. THE VERDICT, JUDGMENT AND 
SENTENCE PROCURED PURSUANT TO THIS TITLE 
SHOULD THEREFORE BE REVERSED------------------

17

18

18

20

23

28

ii



Page
A. The Alabama Statute Title IV §415 Is

Unconstitutional On Its Face In That It 
Sets No Standards For The Imposition Of 
The Death Penalty. The Jury Has Un­
limited And Unfettered Discretion To 
Impose The Death Penalty In No Way Guided 
By Standards Or Principles Of General 
Application Which Would Defeat Arbitrari­
ness----------------------------------------  29

B. Alabama’s Single-Verdict Procedure Of
Submitting Both The Issues Of Guilt 
And Punishment To The Same Jury At The 
Same Time Bears Heavily On The Discrimi­
natory Capital Sentencing In This Case 
and Violates Appellant's Fifth Amend­
ment Privilege------------------------------  33

VI. APPELLANT'S DEATH SENTENCE CONSTITUTES CRUEL 
AND UNUSUAL PUNISHMENT IN VIOLATION OF THE 
EIGHTH AMENDMENT AND THE DUE PROCESS CLAUSE 
OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION
OF THE UNITED STATES----------------------------  39

CONCLUSION-----------------------------------------------  40

iii



TABLE OF AUTHORITIES

Cases:
Aaron v. State, 271 Ala. 70, 122 So.2d 360 ..............  13

Argo v. State, 43 Ala. App. 564, 195 So.2d 901 (1967) . . 31

Baker v. State, 19 Ala. App. 437, 97 So. 9 0 1 ............  9,13
Berger v. United States, 295 U.S. 7 8 ....................  9

Boulden v. Holman, 394 U.S. 478 (1969)................  10, 25
Bowman v. State, 208 So.2d 241 (1968) ..................  9, 12
Brasker v. State, 249 Ala. 36, 30 So.2d 3 1 ..............  12

Crampton v. Ohio, No. 1633, O.T. 1969, 38 U.S.L.W.
3478 (1970)....................................  30

Escobedo v. Illinois, 378 U.S. 478 (1964) ............  10, 21,22
Ex parte Carson, 17 Ala. App. 345, 85 So. 827 ..........  9, 12
Ferguson v. Georgia, 365 U.S. 570 (1961)................  36
Frady v. United States, 348 F.2d 84 (D.C. Cir. 1965) . . .  37
Giaccio v. Pennsylvania, 382 U.S. 399 (1966)............  10, 29
Gideon v. Wainwright, 372 U.S. 335 (1963) ..............  10
Green v. United States, 365 U.S. 301 (1961) ............  36
Griffin v. California, 380 U.S. 609 (1965)..............  36
Griswold v. Connecticut, 381 U.S. 479 ..................  39
Harden v. State, 211 Ala. App. 656, 101 So. 442 . . . .  9,12,13
Harris v. State, 212 So.2d 695 (1968) ..................  9, 12
Herndon v. Lowry, 301 U.S. 242 ..........................  10
Higginbotham v. State, 262 Ala. 236, 78 So. 2d 637 (3 965) . 9, 17
In re McLeod, 23 Ida. 257, 128 P. 1106..................  9,18
Irvin v. Dowd, 366 U.S. 717 (1961)................ .. 22
Jackson v. Denno, 378 U.S. 368 (1964)..................  10

/

iv



Cases (Cont'd) Page
Lovely v. United States, 169 F.2d 386 (4th Cir. 1948) . . .  38
Malloy v. Hogan, 378 U.S. 1 (1964) ....................  21, 36
Marshall v. United States, 360 U.S. 310 ( 1 9 5 9 ) ..........  38
Marvin v. United States, 279 F. 2d 4 5 1 ....................  18
Mason v. State, 259 Ala. 438, 66 So.2d 557 (1953) ........  9,12
Maxwell v. Bishop, 90 S.Ct. 1578 ......................  10,25
McGautha v. California, No. 1632, O.T. 1969, 38 U.S.L.W.

3478 (1970) ....................................  31
Metower v. Simpson, 294 F. Supp. 1134 (M.D. Ala. 1969) . . 31
Miranda v. Arizona, 384 U.S. 436 (1966).............  5, 10, 20,22
Ralph v. Warden (4th Cir. No. 13,757, Dec. 11, 1970). . 10,32,33
Rideau v. Louisiana, 373 U.S. 723 (1963)   22
Roberts v. State, 183 N.W. 555 (1921)....................  15
Robinson v. California, 370 U.S. 660 (1962)   10,33,39
Rudolph v. Alabama, 375 U.S. 889 ..........................  10
Sheppard v. Maxwell, 384 U.S. 333 (1966)................  23
Sherbert v. Verner, 374 U.S. 398 ........................  39
Simmons v. United States, 390 U.S. 377 (1968) ........  10,35,36
Skinner v. Oklahoma, 316 U.S. 535 (1942) ................  10, 35
Smarr v. State, 260 Ala. 30, 68 So. 2d 6 . . . .■.......... 9,17
Specht v. Patterson, 386 U.S. 605 (1967)   10,35
State v. Minton, 234 N.C. 716, 68 S.E.2d 844   21
Thompson v. State, 24 Ala. App. 300, 134 So.2d 679 . . . .  9,12
Turner v. Louisiana, 379 U.S. 466 (1965)................ 23
United States v. Beno, 324 F.2d 582 (2d Cir. 1963) . . . .  38
United States v. Curry, 358 F.2d 904 (2d Cir. 1965) . . . .  37

/

v



Cases (Cont'd)
Page

United States v. Jackson, 390 U.S. 570 ................  10,35,37
United States ex rel. Rucker v. Myers, 311 F.2d 311

(3rd Cir. 1962) ....................................  38

United States ex rel. Scoleri v. Banmiller, 310 F .2d
720 (3rd Cir. 1962) ................................  38

Untreiner v. State, 146 Ala. 26, 41 So. 285 (1906) ........  25
Weatherspoon v. State, 36 Ala. App. 392, 56 So.2d 793 . . .  9,13
Weems v. United States, 217 U.S. 349 (1910) ..............  33
Wilson v. State, 268 Ala. 8 6, 105 So.2d 66 (1958) . . 9,12,13,16
Witherspoon v. Illinois, 391 U.S. 510 (1968) . . 3,10,24,25,26,27
Wright v. People, 104 Colo. 335, 91 P.2d 499 ..............  9,18
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ..................  30

Statutes:
Alabama Code, Recomp. 1958, Title 14, § 395   18
Alabama Code, Recomp. 1958, Title 14, § 415 ........... 28,29,32
Alabama Code, Recomp. 1958, Title 15, §§ 382 (1-13) . . . .  1
Alabama Code, Recomp. 1958, Title 30, § 57 ................

I

vi



IN THE SUPREME COURT OF ALABAMA

JOHN HENRY JONES, JR.,
Appellant,

v.
STATE OF ALABAMA,

Appellee

Appeal from the Circuit Court of 
Jefferson County, Alabama

BRIEF FOR APPELLANT

STATEMENT OF THE CASE

This appeal comes to this Court under the provisions of 
the automatic appeal statute, (Title 15, §382, subsection 1 
through 13 inclusive, Alabama Code of 1940, Pocket Part) from 
the Circuit Court for the 10th Judicial Circuit, Birmingham, 
Alabama, Honorable John J. Jasper, Circuit Judge.

Appellant is John Henry Jones, Jr., a Negro man convicted 
in May 1970 in the Birmingham Circuit Court on a jury verdict 
of the crime of robbery of a white girl. His sentence was 
fixed at death by electrocution.

After being indicted for robbery, appellant was duly



arraigned and pled not guilty and not guilty by reason of 
insanity. Later, in Chambers with the Court, the court 
reporter, and all attorneys present, appellant withdrew his 
plea of not guilty by reason of insanity. Trial was had before 
a jury which found him guilty of robbery and fixed his punish­
ment at death. The sentence of the court was in accordance 
with the verdict of the jury. He duly filed a motion for a 
new trial which he later amended. The motion was overruled. 
Appellant also filed a motion for leave to appeal in forma 
pauperis which motion was granted. In his motion for a new 
trial and now in this his direct appeal, appellant alleges the 
unconstitutionality of his conviction for the following reasons

(1) Appellant's conviction should be reversed because the 
court erred in admitting evidence suggesting rape and assault 
with intent to murder which was extremely prejudicial and 
inflammatory in appellant's trial for robbery (R. 61, 67, 6 8 , 
69-71, 72-82, 105, 106-108, 109, 111, 113, 220).

(2) Evidence suggesting rape and assault with intent to 
murder should have been declared inadmissible because such 
evidence was not embraced in appellant's indictment for robbery 
(R. supra).

(3) In the alternative the jury should have received an 
instruction that evidence suggesting other crimes should only 
go to the question of guilt and not to the issue of punishment 
(R. supra).

(4) The evidence was insufficient to sustain the verdict 
of guilty of the crime of robbery both in fact and in law
(R. 55, 1, 50, 190, 279, 456).

2



(5) There was variance between the indictment and the 
evidence (R. supra).

(6 ) The introduction into evidence of the incriminating 
highly prejudicial admission (R. 244-53) allegedly made by 
appellant to authorities before being apprised of the charges 
against him and made involuntarily when he was without counsel 
violates appellant's Fifth Amendment privilege against self­
incrimination.

(7) Appellant's conviction should be reversed because 
the exclusion of persons with conscientious scruples against 
the death penalty from service on the jury violated the rights 
of appellant under the Fourteenth Amendment to the Constitution 
of the Uhited States and is contrary to the rule enunciated in 
Witherspoon v. Illinois (R. 17-24, 32-33, 35).

(8 ) The Alabama Statute, Title IV, §415 is unconstitu­
tional on its face in that it sets no standards for the 
imposition of the death penalty. The jury has unlimited and 
unfettered discretion to impose the death penalty in no way 
guided by standards or principles of general application which 
would defeat arbitrariness (R. 457).

(9) Alabama's single-verdict procedure of submitting 
both the issues of guilt and punishment to the same jury at 
the same time bears heavily on the discriminatory capital 
sentencing in this case and violates appellant's Fifth 
Amendment privilege. (R. 450-458)

3



(10) Appellant's death sentence constitutes cruel and 
unusual punishment in violation of the Eighth Amendment and 
the Due Process Clause of the Fourteenth Amendment to the 
Constitution of the United States.

By successive orders of the circuit court, the time for 
filing the transcript of the proceedings below in this Court 
was stayed until December , 1970 and by order entered this 
Court on January , 1971, appellant was granted 15 additional 
days to file his brief up to and including January 21, 1971.

STATEMENT OF THE FACTS
I.

MUCH EVIDENCE SUGGESTING RAPE INCLUDING 
BOTH TESTIMONY AND OTHER DEMONSTRATIVE 
AND DOCUMENTARY EVIDENCE SUGGESTING RAPE 
WAS ALLOWED IN APPELLANT'S TRIAL FOR ROBBERY

Beginning with the direct examination of the prosecutrix 
hy the State, there is evidence throughout the record suggesting, 
hinting and in some instances alleging the commission of other 
offenses by appellant. Defense counsel strenuously objected to 
evidence suggesting rape, but there is also much evidence 
indicating assault with intent to murder.

Prosecutrix (R. 61) testified that her money was first 
taken by appellant. There is further testimony from prosecutrix 
(R. 61) that appellant requested she remove her clothes.

There is further testimony (R. 63-69 inclusive) elicited 
from prosecutrix on direct that there was a prolonged struggle 
with appellant (all occurring after he allegedly had taken the 
money, of his allegedly dragging her, pulling off her clothes,

4



and discharging a gun. Later during the direct examination 
of prosecutrix over the objection of defense counsel, the
court permits testimony as to the alleged rape (R. 70) and
there is additional testimony as to a threatened sodomous act.
Throughout the remainder of the testimony of the prosecutrix
(R. 72-87) appellee questioned her vigorously but did not
elicit any testimony about the alleged stolen watch (item in
the indictment) until after prosecutrix had made detailed
allegations not included within the scope of the indictment
(R. 88).

Also articles of the prosecutrix' wearing apparel worn 
during her alleged ordeal were admitted into evidence (R. 102- 
114 inclusive). Defense counsel excepted on the ground this 
demonstrative evidence - of bras, panties, culottes - had no 
bearing on the crime of robbery charged in the indictment.

A statement that appellant allegedly made to the authorities 
which was transcribed was received in evidence (State's exhibit 
XX - R. 244-253 inclusive). In this written instrument (R. 245) 
when receiving the Miranda warnings, appellant is expressly 
told he is in jail on a charge of rape. This written instru­
ment was considered by the jury in its deliberations.

II.
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN 
THE VERDICT IN FACT AND LAW.

A. There was variance between the indictment and the evidence. 
The indictment (R. 1) alleges appellant feloniously took

5



a ladies* gold watch valued at twenty-eight dollars and also 
took thirty dollars in cash.

Yet most of the evidence suggests other offenses not 
embraced in the indictment. On direct examination of prose­
cutrix appellee elicits testimony suggesting rape (R. 65-72) 
and alleging various degrees of assault.

The only evidence as to appellants allegedly taking thirty 
dollars from prosecutrix is found in her testimony (R. 55).
There is no other evidence in the record as to this money.
Also prosecutrix testified that appellant took her watch (R. 8 6 ). 
There is no evidence in the record that appellant was ever 
seen with such a watch or that he ever had this particular 
watch.

However, when appellant was arrested, direct examination 
of the arresting officer revealed a pawn ticket for a watch 
was found on him (R. 204). Further testimony attempts to 
establish a link between appellant and the particular watch 
taken from the alleged victim.

The officer testified he secured the watch from the pawn 
shop (R. 207) and prosecutrix earlier identified the watch 
secured as her watch (R. 8 8).

The pawnbroker testified he did not know the appellant 
at all (R. 187) but the person who had pawned the watch had 
signed the appellant's name. There was evidence from the 
state toxicologist that there were "good points of reproduction 
between appellant's handwriting and the signature on the pawn 
ticket." (R. 279). There was no positive evidence that

6



appellant had even seen or pawned the watch of the prosecutrix.
B. Admission allegedly made by appellant under extremely 

coercive circumstances before being charged with the 
crime or robbery was admitted into evidence.
There was a written instrument introduced (R. 244) allegedly 

a statement made by appellant on the night of his arrest (R. 256- 
260). The evidence shows appellant was (cross-examination of 
police sergeant) arrested at 3:00 p.m. in the afternoon on an 
unrelated charge. At 9:00 p.m. appellant was still without 
counsel and being interrogated. At that point he was charged 
with rape and at 1:30 a.m. the next morning he allegedly signed 
the statement admitting some limited involvement. (See R. 244- 
253) Appellant's defense at trial, however, was alibi.

Ill
DURING THE VOIR DIRE, VENIREMEN WHO WERE 
SCRUPLED AGAINST THE DEATH PENALTY WERE 
STRUCK FOR CAUSE.

The record shows (R. 17-24, 32-33, 35) fifteen veniremen 
were struck for cause because they voiced apprehensions about 
the imposition of the death penalty. Each venireman was asked 
if he felt beyond a reasonable doubt the defendant was guilty - 
after all the evidence, then would preclude the death penalty 
from any and all consideration. Only one prospective juror 
(R. 37) was asked if she would consider all the forms of 
punishment that the "His Honor instructs you on." And she 
answered a vigorous yes.

7



NOTE: There is evidence in the record that Negroes were
systematically and arbitrarily excluded from 
appellant's petit jury venire (R. 45). The defense 
counsel notes for the records the prosecutor's 
discriminatory use of his peremptory challenges.

8



PROPOSITIONS OF LAW

I. The three essential ingredients of the common law 
offense of robbery are the use of force or violence 
or by use of means whereby the person is put in 
fear; the taking from the person* or from the presence of another, of money or other personal 
property; and taking it with the intent to rob or steal.

THOMPSON Vo STATE, 24 Ala. App. 300, 134 So. 679 
EX PARTE CARSON, 17 Ala. App. 345, 85 So. 827 
WILSON v. STATE, 218 Ala. 8 6 , 105 So. 2d 66 (1958) 
HARRIS v. STATE, 212 So. 2d 695 (1968)
BOWMAN v. STATE, 208 So. 2d 241 (1968)

II. The purpose of the indictment is to limit and make
specific the charges the defendant will have to face on the trial.

MASON v. STATE, 259 Ala. 438, 66 So. 2d 557 (1953)
III. Evidence of distinct and independent offenses is not

admissible on the trial of a person accused of a crime.
WEATHERSPOON v. STATE, 36 Ala. App. 392, 56 So. 2d 793 
HARDEN v. STATE, 211 Ala. 656, 101 So. 442 
BAKER v. STATE, 19 Ala. App. 437, 97 So. 901

IV. Evidence of separate offenses in a criminal trial is
admissible only as shedding light on the acts, motives 
and intent of the accused.

HIGGINBOTHAM v. STATE, 262 Ala. 236, 78 So. 2d 
637 (1955)

SMARR v. STATE, 260 Ala. 30, 68 So. 2d 6

V. There is a variance where an indictment charges a
specific offense and the proof establishes the com­mission of a different crime not included in the one 
charged.

MARVIN v. U„ S., 279 F.2d 451
IN RE McLEOD, 23 Idaho 257, 128 P. 1106
BERGER v. U.S., 295 U.S. 78

VI. The defendant can be tried only on the charge con­
tained in the indictment and not for any other offense.

WRIGHT v. PEOPLE, 104 Colo. 335, 91 P.2d 499

9



VII. If the interrogation of an individual held by police 
continues without the presence of an attorney, and a 
statement is taken, a heavy burden rests on the State 
to demonstrate that the defendant knowingly and 
intelligently waived his privilege against self-incrimi­
nation and his right to retained or appointed counsel.

MIRANDA v. ARIZONA, 384 U.S. 436 (1966)
ESCOBEDO v. ILLINOIS, 378 U.S. 478 (1964)
GIDEON v. WAINWRIGHT, 372 U.S. 335 (1963)

VIII. Exclusion from juries of persons scrupled against 
capital punishment is unconstitutional.

WITHERSPOON v. ILLINOIS, 391 U.S. 510 (1968)
BOULDER v. HOLMAN, 394 U.S. 478 (1969)
MAXWELL v. BISHOP, 90 S. Ct. 1578 (1970)

IX. Unfettered discretion to impose the death penalty 
violates Due Process of Law.

HERNDON V. LOWRY, 301 U.S. 242 GIACCIO v. PENNSYLVANIA, 382 U.S. 399 
RALPH v. WARDEN (4th Cir. 1970)
SKINNER v. OKLAHOMA, 316 U.S. 535

X. Use of the single verdict procedure whereby a jury
simultaneously determines guilt and sentence violates 
Due Process of Law.

JACKSON v. DENNO, 378 U.S. 368 (1964)
U.S. v. JACKSON, 390 U.S. 570 
SIMMONS v. U.S., 390 U.S. 377 (1968)
SPECHT v. PATTERSON, 386 U.S. 605

XI. Imposition of the death penalty for robbery is cruel and unusual punishment.
ROBINSON v. CALIFORNIA, 370 U.S. 660 (1962)
RUDOLPH v. ALABAMA, 375 U.S. 889 
RALPH v. WARDEN (4th Cir. 1970)
BEDAU, THE DEATH PENALTY IN AMERICA

10



ARGUMENT
I.

APPELLANT'S CONVICTION SHOULD BE REVERSED 
BECAUSE THE COURT ERRED IN ADMITTING EVIDENCE 
SUGGESTING RAPE AND ASSAULT WITH INTENT TO 
MURDER WHICH WAS EXTREMELY PREJUDICIAL AND 
INFLAMMATORY IN APPELLANT'S TRIAL FOR ROBBERY.

A . Evidence Suggesting Rape and Assault With Intent To 
Murder Should Have Been Declared Inadmissible Because Such Evidence Was Not Embraced In Appellant's 
Indictment For Robbery.

During appellant's trial for robbery, the court admitted 
evidence embracing charges other than the one included in the 
indictment. There was testimony by the prosecutrix over 
objection that appellant asked her to remove her clothes 
(R. 61); there was further testimony the appellant was pull­
ing at the clothes of prosecutrix (R. 67) and that he pulled 
her panties off and broke the zippers to her garments (R. 6 8). 
There was further testimony of consummated rape and an alleged 
threat by appellant to force the prosecutrix to commit the 
act of sodomy (R. 69-71). Also there was extensive testimony 
by the prosecutrix, over objection of defense counsel of 
repeated attempts by appellant to run over her with a car 
(R. 72-82).

Appellant was indicted for robbery —  such crime being 
of thirty dollars ($30.00) and a ladies gold-filled watch 
valued at thirty-eight dollars ($38.00), a common law offense

11



1/in Alabama with three essential ingredients which constitute 
the crime; the use of force or violence, or by use of means 
whereby the person is put in fear; the taking from the person, 
or from the presence of another, of money or other personal 
property; and, taking it with the intent to rob or steal. 
Thompson v. State, 24 Ala. App. 300, 134 So. 679; Ex parte 
Carson. 17 Ala. App. 345, 85 So. 827; Wilson v. State. 268 
Ala. 8 6, 105 So.2d, 66 (1958), Harris v. State, 212 So.2d,695 
(1968); Bowman v. State, 208 So.2d, 241 (1968).

These are the essential ingredients the State must 
prove beyond a reasonable doubt in order to secure a robbery 
conviction, and a lengthy exaggerated excursion into other 
distinct and separate offenses allegedly committed by appel­
lant are clearly not within the scope of the indictment.

The purpose of the indictment is to limit and make 
specific the charges that the defendant will have to face on 
the trial. Mason v. State. 259 Ala. 438, 66 So.2d, 557 
(1953). In a criminal trial the defendant is entitled to 
have an indictment charging specific crimes. Brasker v.
State, 249 Ala. 96, 30 So.2d, 31; Harden v. State. 211 Ala. 
656, 101 So. 442.

1/ The court also permitted the introduction of the various 
articles of clothing prosecutrix wore before and during her 
alleged attack, sweater-vest (R. 105), undergarments (R. 106- 
108, 111) pants and blouse and skirt (R. 109) remainder of 
blouse (R. 113). It also became a part of the record that at the time the accused received the required Miranda warnings 
appellant was charged with the rape of the prosecutrix (R. 220).

12



The general rule in Alabama is that evidence of distinct
and independent offenses is not admissible on the trial of a 
person accused of a crime. Weatherspoon v. State. 36 Ala. App. 
392, 56 So.2d, 793; Harden v. State, supra; Baker v. State,
19 Ala. App. 437, 97 So. 901. Recognizing the exception under 
which evidence of offenses which are part of the same con-

27tinuous transaction is admitted as part of the res qestae, 
appellant respectfully submits this is not such a case for 
the applicability of the res qestae exception to the general 
rule.

In a criminal trial, especially a capital offense, courts
clearly have a duty to safeguard the fundamental rights of
the accused and jealously protect the presumption of innocence
to which he is entitled. The right of the defendant to know
the nature of the charges against him, to have a copy of the
charges, and to have a trial by jury in a criminal trial are
basic rights afforded appellant by both the Constitution of

3/ 4/the United States and the Constitution of Alabama. Any
procedure or rule which encroaches upon these rights should
be closely scrutinized and discarded, if not needed, to ensure
justice.

2/ Wilson v. State. 268 Ala. 8 6, 105 So.2d 6 6, (1958)
3/ U. S. Const, amend. VI.
4/ Ala. Const. 1901, art. 1 §6

13



Having made the choice to indict appellant on a charge 
of robbery, the State should be made to abide by it. It is 
not as if it is foreclosed from bringing additional charges 
if the evidence so warrants. However, the State should not 
be allowed to ride to judgment on a hybrid, especially in a 
case in which the very life of the accused is in jeopardy.

There is a perimeter encircling this res qestae excep­
tion to the admissibility of evidence of separate and distinct 
crimes. Appellant contends the circumstances of the instant 
case fall outside of that perimeter. Appellee sought a con­
viction on the charge of robbery; the court should limit the 
evidence to proof of the ingredients of robbery and no more.
To permit the tate to do indirectly (actually try defendant 
on a charge of rape) what it alone refrained from doing 
directly is to run roughshod over appellant's rights by 
surprising him during trial, rendering his prepared defense 
ineffective, and unduly prejudicing the trier of fact against 
him while he sits in the court of law, surprised, shocked and 
helpless.

B. The Evidence Was Extremely Prejudicial And Inflamatory 
And Thus Constitutes Reversible Error.

In the preceding section the unduly prejudicial portions 
of the record are noted (p. 1, supra). It is appellant's 
submission that all of the evidence suggesting rape and 
assault with intent to murder is so prejudicial as to require

14



a reversal of appellant's conviction. Especially is this 
true when viewed in light of Alabama's single-verdict pro­
cedure —  simultaneously submitting both the issue of guilt 
and punishment to the jury.

Appellant's primary contention is that all of the evi­
dence documentary, demonstrative and testimonial —  suggesting 
other crimes is per se inadmissible.

The presumption of innocence to which a defendant is 
entitled may give way to the respect and sympathy naturally 
felt by any tribunal for a female allegedly wronged, or to 
the unreasoning rage which many feel toward one accused of 
both violence and indecency. "Public sentiment seems pre­
inclined to believe a man guilty of any illicit sexual offense 
he may be charged with. . . . "  Roberts v. State, 106 Neb. 
362, 367; 183 N.W. 555, 557 (1921). Because the crime of 
rape, even if not proved but merely alleged, arouses emotions 
as do few others, it should be tried as a separate offense 
in which there are certain procedural safeguards built in for 
the accused such as corroboration. An alleged crime, such 
as rape, which usually evokes a powerful sentimental emotional 
human response toward the victim should not be used as a 
catalyst to secure a conviction and capital penalty in a com­
pletely different offense. Requirements of due process forbid 
such a procedure.

An additional ground which makes the procedure unlawful 
surfaces when viewing it in the context of Alabama's single­
verdict procedure. If, by some chance the admission of this

15



evidence falls within Alabama's res qestae exception to the 
general rule, it remains an unlawful procedure. The same 
jury that convicts also punishes in single-verdict juris­
dictions. However, even where there is the more favorable 
split-verdict procedure, the bifurcated trial giving the 
accused a fair trial as to both the issues of guilt and 
punishment, this evidence of alleged additional offenses 
should not be admitted. However, if admitted, the second 
jury —  the one determining the punishment —  would never 
hear this evidence.

This Court has said, "all the details of one continuous 
criminal occurrence . . . may be considered by the jury in 
passing on the culpability . . .  of the crime for which the 
party is being tried." Wilson v. State. 105 So.2d, 6 6, 69. 
Therefore, even under the res qestae exception this Court 
has noted that this evidence of "other crimes" only goes to 
the question of guilt. But when there is a single jury, how 
can it help from also being influenced by this inflammatory 
evidence even on the penalty issue? And this is what has 
happened to appellant. The upshot of it all is that contrary 
to all the precepts of justice, he was tried, convicted and 
sentenced for an alleged offense against which he was never 
permitted to defend.

16



II.

IN THE ALTERNATIVE THE JURY SHOULD HAVE 
RECEIVED AN INSTRUCTION THAT EVIDENCE 
SUGGESTING OTHER CRIMES SHOULD ONLY GO 
TO THE QUESTION OF GUILT AND NOT TO THE 
ISSUE OF PUNISHMENT. APPELLANT SUBMITS 
THE COURT'S FAILURE TO GIVE SUCH AN IN­
STRUCTION CONSTITUTES REVERSIBLE ERROR.

If, in the alternative, the court decides the afore­
mentioned portions of the record constitute admissible evidence 
as part of the res qestae of the charge convicted of robbery, 
then appellant contends he was entitled to a jury instruction 
informing the jury as to the law in using this evidence suggesting 
other crimes.

The jury should have been instructed that any evidence of 
rape, assault with intent to murder or any other distinct and 
separate offenses should only be considered on the question of 
guilt of the charge convicted of, robbery. Such evidence was 
admissible only as shedding light on the acts, motive and intent 
of the accused. Higginbotham v. State, 262 Ala. 236, 78 So.2d 
637 (1955); Smarr v. State, 260 Ala. 30, 68 So.2d 6 . In con­
sidering the penalty issue, the jury should have received 
express direction from the court that evidence of other crimes 
should not be considered in fixing appellant's punishment for 
robbery, if convicted. Failure to instruct the jury in this 
manner was prejudicial error and therefore appellant's convic­
tion should be reversed.

17



III.
THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN 
THE VERDICT OF GUILTY OF THE CRIME OF 
ROBBERY BOTH IN FACT AND IN LAW. THERE­
FORE APPELLANT'S CONVICTION MUST BE SET 
ASIDE.

A. There Was Variance Between The Indictment And The 
Evidence.
There is a variance where an indictment charges a specific 

offense and the proof establishes or seeks to establish the 
commission of a different crime not included in the one charged. 
Marvin v. U.S., 279 F.2d 451, In Re McLeod, 23 Idaho 257, 128 P. 
1106. The defendant can be tried only on the charge contained 
in the indictment. . . and not for any other offense. Wright v.
People, 104 Colo. 335, 91 P.2d 499.

In his proof appellee made an attempt to establish appel­
lant's guilt as to rape even though appellant was indicted for 
robbery. The State sought to prove all of the common law 
elements of rape, use of force, penetration, lack of consent, 
against the will. However, the State cannot show on direct 
the alleged details of the occurrence. Aaron v. State, 271 Ala. 
70, 122 So. 2d 360. Appellee was able to circumvent the 
procedural problems by seeking a robbery conviction with all 
the circumstances of the alleged rape an entrenched part of 
the record.

That is clearly material variance for neither did appellee 
prove beyond a reasonable doubt the essential ingredients of 
the robbery offense.

The indictment charged the appellant with feloniously

18



taking one ladies' wristwatch of the value of $38 and $30 in 
currency (R. 1, 450). An essential ingredient of proof of 
robbery is the taking of personal property or money from 
another. The evidence failed to establish a nexus between 
appellant and the items allegedly taken. The only evidence 
in the record which attempts to show appellant took any money 
from the prosecutrix is her statement that she handed him 
thirty dollars ($30) from her purse (R. 55).

There was no evidence which would indicate someone saw 
him spending a similar sum; there were no witnesses to the 
alleged taking; and the record is barren of any evidence except 
prosecutrix' own testimony that appellant took any money from 
her.

The indictment on its face alleges a ladies watch valued 
at thirty-eight dollars ($38)(R. 1, 50) was taken. No watch 
of said description was found in appellant's possession nor 
did anyone testify as to seeing appellant with such a watch.
A search of appellant upon his arrest revealed a pawn ticket.
The pawnbroker testified (R. 190) he could not identify the 
party who pawned the watch. The toxicologist which compared 
the signature on the pawn ticket to appellant's signature 
testified that "there were good points of reproduction". . .
(R. 279). As to the watch the "evidence against appellant was 
highly tenuous and circumstantial.

Also the court in its oral charge to the jury (R. 456) 
emphasized if any one of the three essential elements of robbery 
was not present, then appellant could not be found guilty of

19



robbery. Appellant submits the evidence is insufficient to 
sustain his conviction for robbery.

B. The Introduction Into Evidence Of The Incriminating 
Highly Prejudicial Statement Allegedly Made By 
Appellant To Authorities Before Being Apprised Of 
The Charges Against Him and Made Involuntarily When 

_He Was Without Counsel Violates Appellant's Fifth 
Amendment Privilege Against Self-Incrimination And Its Introduction Into Evidence Therefore Constitutes 
Reversible Error.
There is evidence in the record supporting the contention 

that upon his arrest, appellant was not afforded the protection 
the law allows. The record shows appellant was arrested on a 
charge other than robbery at approximately 3:00 p.m. (R. 255). 
Testimony indicates he orally received the Four Miranda warnings 
at the time of his arrest. Further reading of the record (R. 258) 
indicates appellant was interrogated on and after from the time 
of his arrest around 3:00 p.m. until 1:30 a.m. the following 
morning (R. 255-260). A statement propurtedly made and signed 
by appellant the night of his arrest was introduced into 
evidence. The record (R. 224) also shows that at no time was 
appellant advised that he was charged with robbery - not before 
he allegedly made his incriminating admission nor afterwards.

If the interrogation of an individual held by police con­
tinues without the presence of an attorney, and a statement is 
taken, a heavy burden rests on the State to demonstrate that the 
defendant knowingly and intelligently waived his privilege 
against self-incrimination and his right to retained or appointed 
counsel. Miranda v. Arizona, 384 u.S. 436 at 476 (1964).

20



It is appellant's submission that the statement allegedly 
made by him was totally involuntary for he was without counsel, 
had not been apprised of the charges against him and in a 
coercive environment. " . . .  unless adequate protective devices 
are employed to dispel the compulsion inherent in custodial 
surroundings, no statement obtained from a person held for
interrogation by a law enforcement officer can truly be the

5/product of his free choice.
Appellant's defense is alibi and "the burden of proof of 

an alibi is not on the accused but it is incumbent upon the 
State to show beyond a reasonable doubt on the whole evidence 
that the accused is guilty. State v. Minton. 234 N.C. 716, 68 

S.E. 2d 844.
The introduction of appellant's alleged statement into 

evidence was extremely prejudicial to his case. Alibi was 
appellant's defense and the only evidence which rebuts that 
in any convincing manner is that statement. It is an admission 
that he was at the scene, kidnapped and assaulted the prosecutrix. 
Admitting this statement into evidence in effect was the same 
as forcing the appellant to testify against himself. He did 
testify in his behalf but this earlier admission he allegedly 
made was in evidence and mocked his every word.

The State has the burden of proving appellant knowingly, 
willingly and voluntarily waived rights guaranteed him by

5/ The introduction of this involuntary statement violates 
appellant's Fifth Amendment privilege against self­
incrimination. Malloy v. Hogan (1964), 378 U.S. 1, 84 S.Ct. 1489, Miranda v. Arizona, 384 U.S. 436, Escobedo v. Illinois, 
378 U.S. 478.

21



principles of fundamental due process and voluntarily made 
this statement with a full understanding of his right to 
remain silent. Appellee failed to introduce any evidence which 
would overcome the State's burden of showing voluntariness.
For the foregoing reasons, appellant's conviction should be 
reversed.

6/ Miranda v. Arizona, 384 U.S. 436 (1964), 
Illinois, 378 U.S. 478.

Escobedo v.



IV

APPELLANT'S CONVICTION SHOULD BE REVERSED 
BECAUSE THE EXCLUSION OF PERSONS WITH CON­
SCIENTIOUS SCRUPLES AGAINST THE DEATH 
PENALTY FROM SERVICE ON THE JURY VIOLATED 
THE RIGHTS OF APPELLANT UNDER THE FOURTEENTH 
AMENDMENT TO THE CONSTITUTION OF THE UNITED 
STATES AND IS CONTRARY TO THE RULE LAID DOWN 
** j)__ rjL C -i n p  lS

1/Pursuant to the laws of the State of Alabama, persons 
with conscientious scruples against the death penalty were 
excluded for cause from service on the jury which convicted 
and sentenced appellant. Such an exclusion violated the rights 
of the defendant under the Fourteenth Amendment to the Consti­
tution of the Uhited States.

Appellant's first contention is that such an exclusion 
resulted in a biased and prosecution-prone jury, unable to 
accord him a fair trial on the issue of guilt, and a jury 
unfairly predisposed against the selection of penalties other 
than death. A fair trial by an unbiased jury on the issue of 
guilt or innocence is plainly appellant's right under the Due 
Process Clause of the Fourteenth Amendment, see, e.g. Irvin v. 
Dowd, 366 U.S. 717 (1961); Rideau v. Louisiana, 373 U.S. 723 
(1963); Turner v. Louisiana, 379 U.S. 466 (1965); Sheppard v. 
Maxwell, 384 U.S. 333 (1966). The State may not entrust

7/ "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 penitentiary 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." Alabama Code, Title 30, §57.

23



Appellant's final contention on the scrupled-jury issue 
is that such an exclusion violated appellant's right to a 
fair trial on the penalty issue by denying him a representa­
tive jury. This practice denied appellant a trial of the 
penalty question by a body of jurors validly representative of 
the community.

Witherspoon v. Illinois. 391 U.S. 510, 88 S.Ct. 1770 (1968), 
Maxwell v. Bishop, / U.S. 90 S.Ct. 1578 (1970) and Boulden
v. Holman, 394 U.S. 478, 89 S.Ct. 1138 (1969), are three com­
pelling decisive authorities for the rule of law pronounced in 
Witherspoon in which the Court held:

. . . that a sentence of death cannot be 
carried out if the jury that imposed or 
recommended it was chosen by excluding 
veniremen for cause simply because they 
voiced general objections to the death 
penalty..10/ No defendant can constitu­
tionally be put to death at the hands of a tribunal so selected.

The Alabama statute on qualifying jurors (see p. 23 » footnote 
7, supra) speaks of excluding jurors with a "fixed opinion" 
against capital punishment. However, as the statute has been 
construed "fixed opinion" is the equivalent of "conscientious 
scruples" —  the statutory formulation expressly condemned by 
the Supreme Court in Witherspoon. Contrary to the per se 
meaning of the phrase "fixed opinion," this Court in Untreiner 
v. State, 146 Ala. 26, 41 So. 285 (1906) interpreted it to mean 
exclusion from jury service of one who is generally opposed to 
capital punishment. Witherspoon precludes such a

10/ Ibid at p. 1777.



11/result.
The most that can be demanded of a venireman in a capital 

case is that he be willing to consider all penalties provided 
by state law and that he not be irrevocably committed before 
trial has begun to vote against penalty of death regardless 
of the facts and circumstances that might emerge in the course 
of the proceedings. (Emphasis supplied)

Witherspoon expressly provides that a venireman must be 
willing to consider all penalties provided by state law. The 
jury is not instructed as to the penalties provided for a 
particular offense until the very end of the trial. Therefore 
during the voir dire, if the prosecutor asked several veniremen 
as he did in the instant case if they would preclude the death 
penalty from their consideration (R. 17-23, 32-33, 35) and 
they respond affirmatively, this does not fully satisfy the 
requirements of Witherspoon. The venireman must be asked the

11/ The Witherspoon rule applies to all capital cases in which 
the jury was death-qualified pursuant to procedures which 
excused for cause veniremen who stated that they had con­
scientious or religious scruples against the death penalty, 
or that they were opposed to or did not believe in the 
death penalty, or in which they were excused in some similar 
fashion that recognized a challenge on the basis of general 
resistance or repugnance to capital punishment but did not 
pursue the inquiry to the point of establishing, unmistakably 
and affirmatively on the record, in the case of each venire­man excused, either (a) that his attitudes on the death 
penalty were such that he would refuse, under any possible 
state of the evidence in the case before him, to return the 
death penalty; or (b) that his attitudes on the death penalty 
were such as to prevent his trying fairly and impartially 
the question of the defendant's guilt.

26



question on the basis that the death penalty is one of the 
punishments provided by law for the offense charged, in order 
to provide the clear unambiguous response sought by Witherspoon. 
If the venireman does not know it, that the offense charged is 
punishable by death must at least be hypothesized to him in 
voir dire.

Whereas when the prosecutor (R. 35) asks the venireman 
if she would consider "all the forms of Punishment that His 
Honor instructs you on," (emphasis supplied) he gets an imme­
diate unqualified "yes." This is the only venireman that was 
specifically asked if she would "consider all the forms of 
Punishment His Honor instructs you on," not precluding the 
death penalty. Presenting the question in this manner was a 
way of clearly asking the venireman "if the death penalty is 
provided by state law for this offense and you receive an 
instruction on it, would you preclude it?" Appellant submits 
this form of the question is in the spirit of the Witherspoon 
doctrine and simply asking a venireman if he would preclude 
the death penalty no matter what the circumstances does not 
fully satisfy the Witherspoon requirement.

27



V.

THE ABSENCE OF PROCEDURAL STANDARDS FOR ADMINISTERING 
CAPITAL PUNISHMENT FOR THE CRIME OF ROBBERY PURSUANT 
TO TITLE 14 § 415 OF THE CODE OF ALABAMA WHICH AUTHOR­
IZES THE IMPOSITION OF THE DEATH PENALTY FOR THE CRIME 
OF ROBBERY COUPLED WITH THE ALABAMA PROCEDURE OF SIM­
ULTANEOUSLY SUBMITTING THE ISSUES OF GUILT AND 
PUNISHMENT TO THE JURY IS A PROCEDURE PROHIBITED BY 
THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT,
THE EIGHTH AMENDMENT'S PROHIBITION AGAINST CRUEL AND 
UNUSUAL PUNISHMENT, AND BURDENS FIFTH AMENDMENT PRIV­
ILEGES. THE VERDICT, JUDGMENT AND SENTENCE PROCURED 
PURSUANT TO THIS TITLE SHOULD THEREFORE BE REVERSED.
What is at issue in the instant case —  what appellant 

does vigorously challenge —  are the procedures employed by the 
State of Alabama in selecting the men to die pursuant to Title 
14 § 415 of the Alabama Code. Alabama's practice of allowing 
capital trial juries absolute and arbitrary power to elect 
between the penalties of life or death for the crime of robbery 
without standards or principles of general application to guide 
that choice violates the due process clause of the Fourteenth 
Amendment.

Appellant's second contention is that appellee's practice 
of simultaneously submitting both the issues of guilt and pun­
ishment to the jury in a capital case makes it impossible for 
the jury to exercise its already unlimited discretion in any 
reasonable or rational fashion. Although the due process 
clause guaranteed appellant a fair trial both on the issues of 

and punishment, appellant was forced to give up one for 
the other.

Such arbitrary sentencing power coupled with requiring 
appellant to elect between fundamental constitutional rights

28



often results —  as in the instant case -- in an unduly harsh 
penalty totally unrelated to the factual circumstances of the 
crime which clearly violates the Eighth Amendment's proscrip­
tion against cruel and unusual punishment.

A. The Alabama Statute Title 14 § 415 Is Unconstitutional 
on Its Face in That It Sets no Standards for the Impo­
sition of the Death Penalty. The Jury Has Unlimited 
and Unfettered Discretion to Impose the Death Penalty 
in no Way Guided by Standards or Principles or General Application Which Would Defeat Arbitrariness.
The sentence of death imposed upon appellant was determined

by a jury which, pursuant to the laws of the State of Alabama,
has unlimited, undirected and unreviewable discretion in
determining whether the death penalty shall be imposed.

Robbery, Title 14 § 415. Any person who is convicted 
of robbery shall be punished, at the discretion of 
the jury, by death or by imprisonment in the peniten­
tiary for not less than ten years. Code of Alabama,1940.
Thus the decision between the death penalty and lesser 

alternatives is required to be made by the jury according to 
whatever whims, urges, or prejudices may move it. Such caprice 
to which appellant fell victim flies in the face of the Anglo- 
American concept of the law. Certainly one of the basic 
purposes of fundamental fairness and due process has always 
been to protect a person against having the government impose
burdens upon him except in accordance with the valid laws of

12/
the land. For the very idea that one man may be compelled

12/ Giaccio v. Pennsylvania, 382 U.S. 399, 403 (1966).



to hold his life, or the means of living, or any material right 
essential to the enjoyment of life, at the mere will of another, 
seems to be intolerable in any country where freedom prevails, 
as being the essence of slavery, itself. Yick Wo v. Hopkins.
118 U.S. 356, 370 (1886).

What passes for procedure in implementing Title 14 § 415 
of the Code of Alabama is merely institutionalized arbitrari­
ness. The issue is that the Constitution requires there be a 
lawful system for deciding which men shall live and which shall 
die. The present system of saying to the jury, in effect, "kill 
him if you want" or "spare him if you wish" will simply not do 
in a system based on concepts of fundamental fairness, due pro­
cess and equal protection.

No legal fair or uniform standards for making this 
determination are set forth by statute, judicial decision or 
executive pronouncement. The trial judge gave no directions or 
standards for choosing among permissible sentences. Thus the 
capital sentencing system established under Alabama law permits 
juries to utilize illegal and unconstitutional factors in sen­
tencing appellant to death and resulted in the imposition of 
the death penalty arbitrarily and capriciously, in violation of 
the Eighth Amendment's prohibition against cruel and unusual 
punishment and the rule of law that is the fundamental principle 
of the Due Process Clause of the Fourteenth Amendment to the 
Constitution of the United States. Crampton v. Ohio, cert, 
granted, 0 .T. 1969, No. 1633, 38 U.S.L.W. 3478 (June 1, 1970),

30



McGautha v. California, cert, granted, O.T. 1969, No. 1632,
38 U.S.L.W. 3478 (June 1, 1970).

One point is clear, however; an Alabama jury's death 
verdict in a robbery case is absolutely final. It may not be 
reviewed or set aside by any court. And the fixing of penalty 
is a power vested solely in the jury. Robbery in Alabama is 
punishable by sentences from ten years' imprisonment to death. 
Metower v. Simpson. 294 F. Supp. 1334 (M.D. Ala. 1969). The 
punishment for robbery must be set by a jury. Argo v. State,
43 Ala. App. 564, 195 So.2d 901 (1967). It is, within statu­
tory limits, the exclusive province of the jury, subject to the 
power of the governor to commute a death sentence. The jury's 
power is absolute.

These decisions reinforce the decisiveness and lawlessness 
of the jury's unchecked, unguided power to decide between life 
and death. Therefore, appellant's trial jury had the absolute 
power, which it exercised, to willy-nilly decide that he should 
die.

In addition to its inconsistency with the rule of law 
commanded by due process, Alabama's practice of committing cap­
ital sentencing to the unconstrained and undirected discretion 
of a jury results in the imposition of death sentences that are, 
by their nature, cruel and unusual punishments within the 
Eighth Amendment. Appellant submits since there are no stand­
ards enumerated by which a jury may rationally decide between 
the penalties of life and death in any given case, any death

31



penalties meted out pursuant to Title 14 § 415 per se consti­
tute cruel and unusual punishment.

Appellant does not take the stand that the Due Process 
Clause entirely forbids the exercise of discretion in sen­
tencing, evey by a jury and even in a capital case. Ways may 
be found to delimit and guide discretion, narrow its scope, 
and subject it to review; and these may bring a grant of discre­
tion within constitutionally tolerable limits.

Appellant has been picked to die out of a group of iden­
tically situated defendants convicted of the same crime and 
thereupon permitted to live. The sentencing jury is not required 
to consider the similarities or differences that make the cases 
relevant. it may simply elect to kill him or not, as it 
chooses, for any reason, or for no reason, and certainly for 
no reason that need or will be applied in the case of any other 
defendant.

It is appellant's contention that the Eighth Amendment's 
prohibition against cruel and unusual punishment forbids appel­
lant's execution for robbery since his victim’s life was not 
taken nor was there serious physical harm.

Ralph v. Warden (4th Cir. 1970), held that a defendant 
convicted of rape and his victim's life was neither taken nor 
endangered cannot be executed for rape within the ambit of the 
Constitution. A capital sentence imposed upon such circumstances 
constitutes cruel and unusual punishment and therefore violates 
the Eighth Amendment.

32



There are rational gradations of culpability that can be
13/made on the basis of injury to the victim. if the Fourth 

Circuit finds this holds true for a convicted rapist, surely 
appellant's death penalty for robbery in a situation in which 
the victim's life was not take cannot be squared with the 
Constitution.

The Eighth Amendment is a limitation on both legislative
14/and judicial action. Consequently, it acts as a control on

the jury's imposition of the death penalty in appellant's case 
—  on facts such as these. In appellant's case the imposition 
of the death penalty for robbery is unduly harsh, extremely 
excessive, clearly disproportionate to the crime and is there­
fore constitutionally impermissible. It is a precept of
justice that punishment for a crime should be graduated and

15/proportional to the offense.

B. Alabama's Single-Verdict Procedure of Submitting Both 
the Issues of Guilt and Punishment to the Same Jury 
at the Same Time Bears Heavily on the Discretionary 
Capital Sentencing in This Case and Violate's Appel­
lant's Fifth Amendment Privilege.
Alabama's practice of submitting simultaneously to the trial

jury the two issues of guilt and punishment in a capital case
compounds the vice of lawless jury discretion by making it
virtually impossible for the jurors to exercise their discretion

13/ Ralph v. Warden, 4th Cir., No. 13,757 (Dec. 11, 1970). 
14/ Robinson v. California, 370 U.S. 660 (1962).
15/ Weems v. United States, 217 U.S. 349, 367 (1910).

33



in any rational fashion. The effect of this practice is obvious 
and devastatingly prejudicial to the accused. He is forced to 
elect between his right of allocution and his privilege against 
self-incrimination. If he wishes to personally address the 
jurors who must make the decision whether he shall live or die, 
he can do so only at the price of taking the stand and thereby 
surrendering his privilege. He is subject not only to incrim­
inating cross-examination but also to impeachment. If he 
exercises the privilege, on the other hand, he risks an unin­
formed and uncompassionate death verdict. Should he wish to 
present background and character evidence to inform the jury's 
sentencing choice, he may do so only at the cost of opening the 
question of character prior to the determination of guilt or 
innocence, thereby risking the receipt of bad-character evidence 
ordinarily excludable and highly prejudicial on the guilt ques­
tion. Or he may avoid that risk of prejudice by confining the 
evidence at trial to matters relevant to guilt, letting the 
jury sentence him to life or death in ignorance of his character 
A jury engaged in the task of determining whether a defendant 
shall live or die needs much information that cannot and should 
not be put before it within the confines of traditional and 
proper limitations on the proof allowable as going to guilt or 
innocence.

Appellant challenges the constitutionality of this trial 
procedure which needlessly burdens his Fifth Amendment privi­
lege to remain silent. The Supreme Court of the United States

34



emphasized in United States v. Jackson. 390 U.S. 570 (1968), and 
Simmons v. United States. 390 U.S. 377 (1968), that the exercise 
of the Fifth Amendment privilege in criminal trials may not be 
penalized or needlessly burdened. The jury's simultaneous con­
sideration of the death penalty together with the issue of 
guilt results in such a needless burden —  needless because 
the State has ample means to avoid it, use of the bifurcated 
jury trial, judge sentencing, or the elimination of the death 
penalty.

The Alabama single-verdict procedure therefore confronts 
the defendant on trial for his life with a gruesome Hobson's 
choice. He is subjected to an "undeniable tension," the avoid­
able but unavoided conflict of one constitutional right against 
another, that the Supreme Court recently condemned in a similar 
setting, Simmons v. United States, supra at 394. He has a 
crucial interest —  amounting, indeed, to an independent federal 
constitutional right, see Skinner v. Oklahoma, 316 U.S. 535 
(1942) —  that his sentence be rationally determined. The Con­
stitution guarantees him, also, certain procedural rights in 
this sentencing process: inter alia, "an opportunity to be 
heard ... and to offer evidence of his own." Specht v. Patterson, 
386 U.S. 605, 610 (1967). As the basis for a rational senten­
cing determination, he will often want to present to the 
sentencing jurors evidence of his history, his character, his 
motivation, and the events leading up to his commission of the 
crime of which he is guilty (if he is guilty). The common-law

35



gave him a right of allocution which is an effective vehicle 
for this purpose, as well as for a personal appeal to the jurors, 
where capital sentencing is discretionary.

But to exercise his right of allocution before verdict on 
the guilt issue, he must forego his constitutional privilege 
against self-incrimination. Malloy v. Hogan, 378 U.S. 1 (1964); 
Griffin v. California. 380 U.S. 609 (1965). He mus take the 
stand and be subjected to cross-examination that can incrim­
inate him. Even apart from cross-examination, allocution before 
verdict of guilt destroys the privilege. For much of the value 
of the defendant's personal statement to his sentencer derives 
from its spontaneity, see Green v. United States, 365 U.S. 301, 
304 (1961) (opinion of Mr. Justice Frankfurter), arid this same 
spontaneity —  unguided by the questions of counsel —  leaves 
the defendant impermissibly unprotected as he appears before a 
jury which has not yet decided on his guilt. Cf. Ferguson v. 
Georgia, 365 U.S. 570 (1961).

The simultaneous-verdict practice which entails these con­
sequences is totally inconsistent with Simmons v. United States. 
390 U.S. 377 (1968). There the Court condemned admission at 
the trial of the guilt issue of the defendant's testimony on a 
motion to suppress. The result of that practice was that the 
accused was obliged either to surrender what he believed to be 
a valid Fourth Amendment claim or "in legal effect, to waive 
his ... privilege against self-incrimination." 390 U.S. at 
394. Simmons held it "intolerable that one constitutional 
right should have to be surrendered in order to assert another."

36



390 U.S. at 394. But, as we have shown above, that is exactly 
what the capital trial practice used in appellant's case 
requires.

The question in United States v. Jackson, 390 U.S. 570 
(1968), was whether the provision of the federal kidnapping 
statute reserving the question of the death sentence to the 
exclusive province of the jury "needlessly encourages" guilty 
pleas and jury waivers and therefore "needlessly chill[s] the 
exercise of basic constitutional rights." 390 U.S. at 582.
So here the question is whether the simultaneous trial of guilt 
and punishment needlessly encourages the waiver of the right to 
remain silent or needlessly chills the right to put in evidence 
relevant to sentencing and the right of allocution. in view of 
the ready availability of alternative modes of procedure ; not 
involving this dilemma —  for example, the split-verdict proce­
dure now in use in a number of jurisdictions and uniformly 
recommended by modern commentators, see Frady v. United States. 
348 F.2d 84, 91, n. 1 (D.C. Cir. 1965) (McGowan, J.); cf.
United States v. Curry. 358 F.2d 904, 914 (2d Cir. 1965) —  
the single verdict procedure plainly falls under the ban of 
Simmons and Jackson.

A second, related and aggravating vice of this simultaneous 
verdict procedure lies in the intolerably unfair choices which 
it requires of a man on trial for his life. Often he must choose 
between making his defense on the guilt issue or casting his 
whole case in avoidance of the death penalty. if the defendant 
seeks to present to the jury evidence of his background and

37



character for purposes of sentencing, the prosecution may- 
counter with evidence of the defendant's bad character, includ­
ing evidence of unrelated crimes. The prohibition which 
ordinarily keeps this sort of evidence from the trial jury 
sitting to determine the issue of guilt is "one of the most

4

fundamental notions known to our law." United States v. Beno,
324 F.2d 582, 587 (2d Cir. 1963), arising "out of the funda­
mental demand for justice and fairness which lies at the basis 
of our jurisprudence," Lovely v. united States. 169 F.2d 386 
389 (4th Cir. 1948). See Marshall v. United States. 360 U.S.
310 (1959). Allowing the trial jury access to unfavorable 
background information, however pertinent to the issue of pun­
ishment and however clearly limited by jury instructions to 
that use, may itself amount to a denial of due process of law. 
Compare United States ex rel. Scoleri v. Banmiller. 310 F.2d 720 
(3rd Cir. 1962), cert, denied. 374 U.S. 828 (1963), with United 
States ex rel. Rucker v. Myers, 311 F .2d 311 (3rd Cir. 1962), 
cert̂ . denied, 374 U.S. 844 (1963). in any event, the possibility 
that the background information will be strongly prejudicial 
forces a defendant to a "choice between a method which threatens 
the fairness of the trial of guilt or innocence and one which 
detracts from the rationality of the determination of the sen­
tence. " American Law Institute, Model Penal Code. Tent. Draft 
No. 9 (May 8, 1959), Comment to § 201.6 at 74.

38



VI.

APPELLANT'S DEATH SENTENCE CONSTITUTES CRUEL 
AND UNUSUAL PUNISHMENT IN VIOLATION OF THE 
EIGHTH AMENDMENT AND THE DUE PROCESS CLAUSE 
OF THE FOURTEENTH AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.

The death sentence for the crime of robbery is so cruel 
and unusual as to constitute a violation of the Eighth Amend­
ment of the Constitution of the United States. The penalty 

the loss of life without commensurate justification.
Even if applied regularly and evenhandedly, the death 

penalty would violate public standards of decency, dignity and 
humanity. it avoids public condemnation only by being unus­
ually and arbitrarily applied (Argument V, supra). in this it 
is cruel and unusual punishment within the Eighth Amendment.

Execution by electrocution also imposes physical and 
psychological torture and under contemporary standards of decency 
it is so cruel and unusual as to constitute a violation of the 
Eighth Amendment. Robinson v. California. 370 U.S. 660;
Sfterbert v. Verner. 374 U.S. 398; Griswold v. Connecticut. 381 
U.S. 479.

39



CONCLUSION

WHEREFORE, for the foregoing reasons, appellant respect 
fully submits that his conviction should be reversed and the 
sentence of death imposed upon him be set aside.

Appellant requests oral argument.
Respectfully submitted.

DEMETRIUS C. NEWTON408 North 17th Street 
Birmingham, Alabama

JACK GREENBERG 
NORMAN C. AMAKER JACK HIMMELSTEIN 
ELAINE R. JONES10 Columbus CircleNew York, New York 10019
Attorneys for Appellant

40



CERTIFICATE OF SERVICE

The undersigned certifies that on the ____ day of
January, 1971, a copy of the foregoing brief for appellant, 
was served on the Hon. Earl C. Morgan, District Attorney for 
the 10th Judicial Circuit by personally serving him at his 
office in Birmingham, Alabama in the Jefferson County Court­
house. The undersigned further certifies that he served 
the Attorney General of Alabama by mailing a copy addressed
to him at his office in Montgomery, Alabama on the ---- day
of January, 1971 via United States mail, postage prepaid.

Demetrius C. Newton Attorney for Appellant