Beecher v. Alabama Brief and Argument on Writ of Certiorari of William J. Baxley, Attorney General, and David W. Clark, Assistant Attorney General

    DIV. NO. 10

IN THE SUPREME COURT OF ALABAMA

JOHNNIE DANIEL BEECHER, 

APPELLANT

-VS-

STATE OF ALABAMA,

APPELLEE

APPEALED FROM THE CIRCUIT COURT OF 
LAWRENCE COUNTY, ALABAMA

BRIEF ON WRIT OF CERTIORATE

OF

WILLIAM J. BAXLEY 
ATTORNEY GENERAL

AND

DAVID W. CLARK 
ASSISTANT ATTORNEY GENERAL

ATTORNEYS FOR APPELLEE

STATE ADMINISTRATIVE BUILDING 
MONTGOMERY, ALABAMA 36104



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P ro p o s itio n s  o f  Law .............. ............................... .. ig

Argument ..................... ............................. .................................... 22
C o n c lu s io n ................................................ ............. ............................. 32

C e r t ij .ic a u e  Qj. Servn.ee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  33



CASE)c 11

Appellant, Johnny Daniel Beecher, appealed from a 

conviction of murder in the first degree with a sentence 

of life in the penitentiary. The Court of Criminal Appeals 

arfirned on October 2., 1974 and denied rehearing on October 

23, 1374. Certiorari was denied on January 16, 1975 and 

this Honorable Court granted the application for rehearing 

on March 4, 1375.

Appellee’s statement of facts is an addition to and 

a correction of appellant’s statement of facts.

The roll of the venire was called and excuses heard 
(R. pp. 48-35).

Hearing was had on application for change of venue 

from Jackson County to Lawrence County on April 6, 1973.

Hr, Arthur Slaron, owner of the Moulton Advertiser, 

admitted that his paper carried several articles about the 

pending trial. He admitted that he had personally heard cf 

the news about the trial on radio and TV and that his source 

of information was fvon the Associated Press and was the same



-  2 -

as other newspapers; that he did not remember hearing any 

discussion of the case in public or a report of the previous 

case. He published about 4300 to 4400 copies weekly.

March 22, 1973 and .-April 5, 1973 articles about the pending 

trial were put into evidence (R. pp. 87-101).

Mr. Barrett Shelton, Jr., General Manager of the 

Decatur Daily, was questioned as to articles written concern­

ing the first and second trials, both of which were reversed 

because of confessions. Witness testified most of the arti­

cles were by the Associated Press; that 2249 daily papers 

were sold in Lawrence County. Several articles, mostly of the 

earlier trials, were introduced into evidence. On cross- 

examination, witness stated he did not think he had a report 

covering the first two trials, the one in Scottsboro and one 

in Centre; that most came from the Associated Press. Witness 

stated that the story did not have the same interest as if it 

had happened locally; that he had not heard the Beecher case 

discussed at all in Moulton. Witness stated that the Beecher 

case did not get as much publicity as the recent murder of a 

former Mayor of Decatur or the Boulden case, which received

four or five times as much publicity as the Beecher case (R.



pp. 101-144).

Thomas rrarl.lin Stevenson, Jr-., employee of the De- 

catur Daily and former reporter at the Athens News Courier, 

testified he covered all Lawrence County for news; that he 

and Bob Lowery covered the current Beecher case; that in­

formation of the earlier cases was from the Associated Press 

reports; that there was not very much interest in this case; 

that he had talked to many people and that he could remember. 

that only one person thought Beecher was guilty.(R. d . 167). 

After a recess, the hearing reconvened and the judge again 

excused the jury warning them to refrain from reading any 

newspaper reports or news reports of the case (R. pp. 144- 

170). Motion for change of venue was overruled (R, p. 175).

Hearing was next had on the motion to quash the

venire.

The IS50 census sheet of Lawrence County, Alabama, 

showing population by age and race was introduced into evi­

dence (R. o. 181).

Otis Lee Gentry, Jury Commissioner since June 3.971, 

testified that Mr. Bass, the President of the Commission, had 
died ten days age, and that witness and Bob Wiley were the



cnly present commissioners. Witness stated that they met 

in August of each year as required by law, removed the ones 

who had been convicted, or had died and those recommended 

to be taken off by the Circuit Judge on account of age, sick­

ness or disability (R, p. 133); that a new book was made 

in 1971. Witness admitted that he did not know everybody; 

that they took the poll list and the ones in it and quali­

fied remain in and ones recommended are put in the book (R. 

p. 184); that they, either together or singly, go to each 

community in the county, meet with leading citizens, use the 

poll list and telephone list to gather names for the jury 

box; that they work 23 to 25 days and that the poll list had 

last been checked last September (R. p. 185), Witness testi­

fied they questioned the leading citizens as to possible 

people to put in the jury box (S, p. 187); that there are 17 

that they went to each beat (R. d . 189). Witness 

t, 1*13. i- L-il 0 OOj-uiii ssioners all got together and discussed 

to be added or perhaps left off where the recommended 

violated the law. Witness testified that when he 

came on the beard that Mr. Bass told him that the racial compo­

sition of the jury was 20 - 80 (R. p. 209) and that he did not

JSdcS aliC

the names

J - A tCLL

Know wnai end could not say from the list whether



-

the persons thereon were black or white; that he knew at the

time they were added but he could nor recall new (R. p. 216)

Defense asked racial identity of jurors in Beat 14, which has 

only two or three black families (R. p, 224). On cross- 

examination out of a possible four blacks one-was over 65 and 

did not want to be on the jury and his son had been convicted 

of a felony (R. p. 227), On cross-examination a relative of

Dee Pointer, the one convicted of a felony, was shown to be on

the jury list (R. p. 229). Witness did not know the names of

other black families in Beat 14 (R. pp. 182'-231).

Mr. Bobby 0. Wiley, Jury Commissioner since June 18, 

1971, testified the box is filled by using every name avail­

able, the poll list, telephone book, people in the community 

and outstanding citizens. Witness gave names of a number of 

blacks in Beat 1. Witness stated he knew less than a hundred 

blacks in the county (R. p. 253): that he had never rejected 

any blacks (R. pp. 231-265).

Mrs. Mary Jean Wann from Courtland, Alabama, Clerk of 

the Lawrence County Jury Commission since July 1971, testified 

that she met with the Commission, reviewed the names of quali­

fied jurors, typed the cards and made up the jury roll; that



6

she visited some beats and made a list of names and submit­

ted them to the Commission (R. pp, 266, 267): that she 

visited relatives and friends in the county. Witness gave 

the names of several blacks and whites she had contacted.

She had attended rallies of mostly whites and some community’ 

action meetings where she had contacts with blacks (R. p,

273). She gave the names of a number of blacks on the rolls 

(R. pp. 276-230). Mrs. Warm admitted on cross-examination 

that she knew less than 500 of the 2355 blacks over the age 

of 21 in Lawrence County (R, p. 286) and that the Commission 

had never considered a man or woman's race in their considera­

tions (R. pp. 266-232).

Mrs. Marie S» Dodd, former Clerk of the Jury Commis­

sion of Lawrence County from 1957 to 1971, identified some 

of the black people in Moulton but admitted she had not lived 

there in 17 years (R. pp. 297-303). She said she knew less 

than 500 of the 2355 black men and women over 21 in the county 

(R. pp. 293-310).

Mr. Walter h. Burns, a teacher in Moulton, testified 

as to the number of black and white schools when he taught



coached. He identified some blacks on the list in the places 

he had taught, but could not identify them in other communi­

ties. On cross-examination it was brought out that the Wheeler 

area formerly had 500 families, mostly colored, and now less 

than 20 families lived there as many left the rural areas to go 

to Huntsville and other industrial areas. He did not know any 

blacks living in the Hatton Community in Beat 13 (R. pp. 312- 

343).

Mr. Richard Alexander Hubbard, former principal of Cen­

tral and Courtland High Schools, identified blacks on the roll 

in the Courtland area, but admitted he could have missed some 

of them; that although he did not know the Red Bank Community,

Beat 3, too well, but identified several blacks from that place 

on the roll (R. pp. 344-360).

Mr. George D. Carter, a teacher at Town Creek Elementary 

School, identified a number of blacks on the jury list, but 

on cross-examination admitted these were the ones he knew personal 

ly (R. pp. 350-370).

Mr. Thomas Henry Grant, TVA Conveyor Operator, testi­

fied he knew something of the racial structure of the county 

and that he had never been contacted by Mr. Bass, Mr. Wiley or 

Mrs. Wann about recommending blacks for the jury list.- On



8

cross-examinet 

in the Moulton

m  one

Lon, he could not estimate the number of blacks 

area and could not give more than a few family 

renouncing areas and none in other communities

d o . 370-:

Mrs, 'vann was recalled and testified that in her best 

judgment there were around 3000 names on the master jury list 

of Lawrence County (R. op. 378-381).

The testimony presented was inconclusive as the only 

evidence presented as to percentage of blacks was from witnes­

ses who testified that these were the only blacks on the rolls 

known to them (R. pp. 182-377).

Judge Billy C, Burney testified that in the last twelve 

months, 15 or IS venires were drawn and that after excusing 

some jurors that there would be an average of 10 blacks on a 

50 man venire and 3 to 10 blacks on a 42 man venire (R. p.

333): that these 3 to 10 are the actual ones that answer the 

roll call on organization day (R. p, 384). On cross-examination 

witness admitted he did not knew all the whites or blacks by 

their names.

Venires were introduced into evidence,

A stipulation was. entered into showing that the venire





Status:

Reported Decision Cites:
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Do you .have the files for this case in your office7
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[] Current only 
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70 regular jurors Included the names of 5 blac is. and that
none of the 5 special jurors summoned was black. Motion to 

quash was overruled after arguments had been heard (R. d. 
456).

Case was continued and jury discharged (R. p. 453).

Motion for a change of venue from Jackson County to 

Lawrence County was heard on June 18-21, 1973.

ihe role of che venire was called and the jury quali­

fied. The moLion to voir dire the prospective jurors indivi­

dually was overruled, but the Court allowed voir dire of 12 

jurors outside the presence of the others (R. p„ 505) and while, 

as stated on footnote on page 13 of appellant’s brief, several 

people had read about, the case, they had formed no opinion and 

accepted the presumption of innocence.

Derendant called Mrs. Jean Warm to testify on motion to 

quash the venire. She testified the jury roll was the same now 

as on April 24 (R. pp. 694-695). Evidence had on April 24 was 

introduced. Motion t~o quash the venire was overruled ^R. p. 
697).

Motion for change of venue was renewed and supplemented 
with additional evidence.



10

Mr. Tommy Stevenson, reporter for the Decatur Daily, 

was called to the stand and identified articles concerning 

proposed trial of defendant in Lawrence County. Exhibits of 

the articles were introduced into evidence (R. pp. 703-714).

Mrs. Jewel Moore identified two articles written for 

the Moulton Advertiser which were put into evidence (R. pp» 

714-724). Motion for change of venue was overruled (R. p.

725).

Jury was selected (R. pp. 728-733) and sworn (R. p.

734). Bailiffs were sworn (R. p. 738).

Motion to quash the venire on the grounds that the State 

has systematically excluded blacks from jury service through the 

use of peremptory (R, p. 741) in that three blacks were struck 

by the State was argued. The District Attorney stated that two 

of them had asked off and that they let another juror off be­

cause of mixture of names (R» pp. 742-744).

On Defendant's motion to suppress the following was pre-
\

sented:

Johnny Daniel Beecher testified that he rode from Jackson

County Jail to Lawrence County for arraignment on April 6, 1973



-  11

and that Mr, Black discussed his case with him (R. po. 752-756). 

On cross-examination witness was questioned about prior convic­

tions and conversations about his girl friends at Bryce. He 

denied the latter (R. po. 756-767).

Defense invoked the rule and the Court ruled that Mr. 

Chisenall could remain at counsel table (R. p. 773) and, after 

voir dire hearing, overruled objection of defense and allowed 

Mr. Chisenall to remain at the table, (R. p. 778).

At the trial the State presented the following:

Mr. Ramon Chisenall testified that on June 15, 1964, he 

lived with his wife, Martha Jane Chisenall, age twenty, near 

Stevenson, in Jackson County; that he went to work at 6 o ’clock 

that morning, doing logging work on Sand Mountain; that nobody 

was there with her when he left; that he had had sexual relations 

with her the night before. Witness stated his wife was in good 

health when he left her and he next saw her, dead, at the funeral 

home. Witness identified pictures showing her wearing a pair of 

shorts and a little striped shirt. Witness testified he worked 

five or six days a week from sun up to sun down; that he and 

Martha Jane had been married since November 22, 1963. Witness 

testified that J. M. Prince, who lived down the road, came and



12

got him at about 10 o'clock on June 15, and wanted to know if 

n!s had ---one >_o Scoti_sborc, but witness told him his wife

was planning to go over to his sister's, but she didn't go; that 

J. M. Prince told him that a convict had escaped; that he went 

home at about 10:30 and his wife was gone and the house was 

romshac.<led, sttii-j. thrown on the floor, etc.; that he went 

searching ror his wire. Witness denied that convicts were ever 

served drinking water at his house. Witness remarried in 1966 

and has z cnixdren. Witness did not see any dogs (R. pp. ISO- 
SOS).

Derense argued a motion to suppress any evidence of a 

prior conviction or derendant. to be given in the testimony of 
Mr. Sisk. Motion was denied (R. p. 802).

-’A?* Czaucie Sisx. cestiried that he was a convict guard 

5l- ^cottsboro on June 15, 1964; that defendant and six

others were checked out to him and they went up above Hollywood 

and chunked sene logs; that he told defendant to pull up a 

poŝ .; iai. sncrcly thereafter he realized Beecher had escaped 

jumped in o. truck and gave cnase; tnat Beecher escaped from a 

piace about eight tenths of a mile from where Ramon Chisenall 

and his wife lived in Jackson County, Alabama; that dogs were



13 -

brought from Atmcre by William A. Wilson and Henry Driver.

Wilson was brought in and identified. Witness testified the 

dogs were shown tracks with a broken place In the shoe. Wit­

ness stated that no articles of prison clothing were ever dis­

tributed in the Scottsboro community. Witness stated that it 

was hot and muddy and that four or five dogs ran toward Mr. 

Graves’ barn; that near it was Graves’ house and beyond it 

Chisenall’s house. Witness testified that he didn’t see any­

body at the Chisenall house at around 8 that morning when he 

passed. Witness testified he was driven 45 to 50 miles an hour 

to the Chisenall’s (R. pp. 813-354).

Mr, Herbert Acker testified he was a member of the 

Cherokee County Rescue Squad on June 15 and 16, 1964 and he and 

Mr. G. H. Bishop found the body cf Martha Jane Chisenall up 

on Sand Mountain near a strip mine. He Identified the pictures 

of Mrs. Chisenall and they were entered into evidence as State’s 

Exhibits Nos. 1 and 2. Witness testified that the body of de­

ceased was not moved until Coroner W. R. Henshaw took over (R. 

pp. 856-874).

Coroner W. R, Henshaw identified State’s Exhibit No. 1. 

Witness testified that when he first saw deceased, she was



covered with a little bit of soil and brush, hands tied be­

hind her bach, rags around her face and a web belt around 

her neck. Rags and belt were marked for identification. He 

identified them. After voir dire the strips of wrappings 

taken and web belt were identified as those taken off the de­

ceased’s body and admitted into evidence as State’s Exhibits 

Nos. 3 and 4 (839-391). Witness stated the body was found 

about two miles above the Chisenall residence. Witness stated 

”1 am certain these are the bindings.” (R. p. 908.)

Mr. Van Pruitt, Jr., Toxicologist for the State of 

Alabama, testified he examined the body of Martha Jane Chisenall 

on June 16, 1964 at the Scottsboro Funeral Home at about 1:25 

P.M.; that she had an area of bruising and swelling about the 

left side of the neck that extended to the back portion of the 

neck and had superficial wounds on the lower legs, lacerations 

on the inner surfaces of the lips, abraisicn over the left eye 

involving the eyebrow and the eyelid. Witness identified pic­

tures developed by him showing the wounds, which pictures were 

introduced as State’s Exhibits Nos. 5 and 6. Witness testified

he found spermatozoa in the dead end of the vagina at the lips 

of the cervix. His opinion was that Mrs. Chisenall had been



- 15

dead about twenty hours when he viewed the body at 1:25 P.M. 

on June 15, 1964 or that she had died at approximately 5:25 

P.M. on June 15, 1964 and that the cause of death was asphyxia, 

resulting from manual strangulation. Witness testified that 

deceased had had regent sexual relations prior to her death (R. 

pp. 914-940).

Mr. Dick Burrow testified he was Chief of Police in 

South Pittsburg, Tennessee, on June 17, 1364 when he saw de­

fendant on the L & N Railroad and that he attempted to head 

him off and hollered at him and that another officer shot de­

fendant in the leg when he kept running; that Beecher was 

wearing convict trousers, no belt, not armed, and was wearing a 

light colored undershirt (R. pp. 941-944).

Mr, William A. Wilson testified he was a prisoner on 

June 15, 1964 and was responsible for handling the bloodhounds; 

that he took five bloodhounds to track defendant; that he had 

used these same dogs 75 to 100 times previously. Witness testi­

fied that one of the shoes of the person being tracked had 

"an unusual marking on it" a "sort of like a crevice or a split" 

(R. p. 976); that the dogs went to the house from whence the 

body was missing (R. p. 977) and then up the mountain to a de­

serted log cabin; that shortly thereafter a helicopter came



- 16

down to land in the field and scattered the dogs; that the 

dogs ran about a quarter of a mile to a strip reining pit and 

that there were about 50 or 75 people a round; that this dis­

turbed the tracking of the dogs and they lost the trail around 

the river (R. p, 983), Witness stated that the dogs had track­

ed competently and adequately and had been successful nine 

out of ten times (R. p, 989), The witness stated that he found 

a footprint similar to the one first observed near the barn, 

having a crevice in the sole of the right shoe and dogs were 

again turned loose. Witness identified some of the pieces of 

cloth making up the bindings on deceased as prison issue cloth 

and some not (R. pp, 944-1073).

Trial was interrupted for continuation of Motion to 

Suppress, The State presented the following:

Sheriff W. R. Collins testified that in April, 1973 

Mr. Black and he brought defendant from the Jackson County Jail 

to Moulton; that he stopped at Woodville at his sister-in- 

law’s house to call his office and that she stayed outside talk­

ing with Mr. Black the three or four minutes he was inside the 

house and she was still talking when he came out; that at no 

time did he or anyone in his presence talk about the case against



17 -

defendant or the Chisenall murder; that neither he nor anyone 

in his presence made any remarks about defendant's counsel. 

Witness stated that defendant talked a lot about retiring, going

to Bryce Hospital and talking to some girl friends there; that no 

one stated they wanted him to plead guilty, or that his lawyers were 

hot treating him right; that no one made a statement asking him 

if he was having any sexual relations with Miss Jones; thar nobody 

else mentioned sexual relations except Beecher about his nurses 

down at Bryce (R. pp. 1075-1034). Witness testified that defendant 

rode in the back seat on the way over and that neither he nor Mr. 

Black discussed this case with defendant (R. pp. 1073-1096).

Kenneth Ray Phillips, Deputy Sheriff of Cherokee County, 

Alabama, testified he was a bailiff at the trial in 1969 and he

was in the witness room alone with Beecher while the jury was out 

deliberating the case and that he asked no questions nor did he 

make any statements to defendant about the case and that the de­

fendant made the unsolicited statement "I am scared of the electric 

chair because I am a guilty man. I don't deserve to walk the 

streets." (R. pp. 1073-1119.)

Johnnie Daniel Beecher recalled by movant testified he 

was represented by Attorneys Morgan Weeks and Tommy Armstrong at 

the time of the alleged statement; that Mr. Phillips knew this 
and that fir. Phillips questioned him and that also Mr. Black 
talked with him (R. pp. 1119-1128).



-18

Kenneth Ray Phillips was recalled and could not 

remember hearing the testimony of Dr. Headrick and further 

stated that he did not discuss the case with defendant in 

the witness room (R. pp. 1129-1130). Motion to suppress the 

statement made to Kenneth Ray Phillips was overruled (R. p. 

1136).

Trial was continued. For the State:

Kenneth Ray Phillips, Deputy/ Sheriff of Cherokee 

County, Alabama, testified that, as bailiff at the trial of 

defendant in 1969, he had defendant in his custody while the 

jury was deliberating; that he did not ask defendant any ques­

tions nor was he asked to question defendant; that he and de­

fendant had been talking about other matters than his case, and 

defendant said, nMan, I am scared of that electric chair. I 

donTt deserve to walk the streets, because I am a guilty man.” 

Witness stated he made no reply to this and that he told Sheriff 

Garrett about it two or three days after the trial. He was 

relieved by Herbert Acker. The jury had been out about two 

hours at the time the statement was made (R. pp. 1137-1154).

Motion for mistrial was overruled (R. d . 1156).

William A. Wilson returned to the stand and was ques­
tioned by the defense about training dogs, feeding them, etc. 

and defense made an attempt to go over earlier testimony (R. 
pp. 1156-1222).



19

Defense moved for a mistrial saying Mr. Black, in 

oral argument to the jury, said "No one took the stand to 

deny it" referring to the testimony of Mr. Ken Phillips.

Motion overruled as there was no reference to the failure 

of the defendant to take the stand (R. pp. 1237, 1238).

Court gave an oral charge and given written instruc­

tions (R. pp. 1239-1253). After verdict was returned (R. p. 

1253) jury was polled (R. pp. 1254-1256). Oral motion to set 

aside the verdict was made (R. p. 1257) and overruled (R. p. 

1258). Oral motion for.new trial was made and overruled (R. 

p. 1258). Oral notice of appeal and motion to proceed in 

forma pauperis was made (R. p. 1258), Defendant took a work­

ing appeal (R. p. 1261) after the hearing thereon in which 

appeal in forma pauperis was allowed (R. p. 1260).

PROPOSITIONS OF LAW 

I

A. THE LAW OF ALABAMA DOES NOT REQUIRE LITERALLY, THAT 

EVERY QUALIFIED PERSON’S NAME BE PLACED ON THE ROLLS OR IN THE 

BOX. HOWEVER, THE LAW DOES REQUIRE THAT THE JURY COMMISSIONER



20

NOT PLACE SO FEW NAMES IN THE JURY BOX A3 NOT TO OBTAIN A 

FULL CROSS SECTION OF THE COUNTY.

State ex rel. Gregg v. MaoT.es, 
286 Ala. 274, 239'So. 2d 193;

Turner v. Soencer,
251 F. Su r o. 542;

Swain v. Alabama,
380 U.S. 202, 85 S. Ct. 824,
13 L. Ed. 2d 759.

B. A DEFENDANT IN A CRIMINAL CASE IS NOT CONSTITU­

TIONALLY ENTITLED TO DEMAND A PROPORTIONATE NUMBER OF HIS

RACE ON THE JURY WHICH TRIES HIM NOR ON THE VENIRE OR JURY

ROLL FROM WHICH PETIT JURORS ARE DRAWN.

Taylor v. Louisiana,
No. 73-5744 
16 Cr. L. 3033;

Carter v. Greene County et ai,,
24 L. Ed. 2d 549, {390 S. Ct

Swain V. Alabama,

CO CO o <~l .S. 202, 85 S,. Ct. 824
13 L. Ed. 2d 759;

Title 30, Sections 18, 20, :
of Alabama 1940, as amended.

C. THE HOLDING THAT PETIT JURIES MUST 3S DRAWN FROM 

A SOURCE FAIRLY REPRESENTATIVE OF THE COMMUNITY IMPOSES NO 

REQUIREMENT THAT PETIT JURIES ACTUALLY CHOSEN MUST MIRROR THE



21

COMMUNITY AND REFLECT THE VARIOUS DISTINCTIVE GROUPS IN THE 

POPULATION. DEFENDANTS ARE NOT ENTITLED TO A JURY OF ANY 

PARTICULAR COMPOSITION, BUT THE JURY WHEELS, POOLS OF NAMES, 

PANELS- OR VENIRES FROM WHICH JURIES ARE DRAWN MUST NOT 

SYSTEMATICALLY EXCLUDE DISTINCTIVE GROUPS IN THE COMMUNITY AND 

THEREBY FAIL TO BE REASONABLY REPRESENTATIVE THEREOF.

Taylor v. Louisiana, 
N07TSP5744 ( Jan7~2I, 1975);

Fay v. New York,
332 U.S. 261 11947);

Aooaaca v. Oregon,
406 U.S. 404 (1970).

II

DISTRICT ATTORNEY’S CLOSING ARGUMENT COMMENTING "NO 

ONE TOOK THE STAND TO DENY IT” REFERRING TO UNSOLICITED STATE­

MENT MADE TO A DEPUTY SHERIFF WAS NOT A PROHIBITED COMMENT ON 

DEFENDANT'S FAILURE TO TESTIFY.

Taylor v. State,
279 Ala. 390, 185 So. 2d 414,
reversing 43 Ala. App. 185, 185 So. 2d 812;

Holden v. State,
%4 Ala: App. 487, 213 So. 2d 869;

Swain v. State,
275 Ala. 508, 156 So. 2d 368, cert. den.
380 U.S. 202, 85 S. Ct. 824, 13 L. Ed. 2d 759;



22

2d 38(

jJi LfciUrrC KRQR BY DISTRICT- ATTORNEY 

TO THE FAILURE OF DEFENDANT

warren v
* r*»pp * C D y Jo. 2d 817 (1373):

cere v.
4-3 ar_a * a r p. 

White v« Sra-

273 So. 2d 183:

225 So. 2d 674:

!. 2d 222,

•* —> f~t~ ri XT’

On January 2 1, 2-2"’ ? '— *•'— 3'uprerae Court of the United

States held that -it is no loner S3? tenable to hold that women

as a class nay be excluded or giv!or. au t ora tic ex erno ti oris based

3-574'

■illy J. Taylor v. Louisiana, No.



- 23 -

Appellee attempts to argue that this ruling of the 

Supreme Court of the United States makes it mandatory that 

blacks have proportionate representation on jury rolls and 

venires.

The opinion of Mr. Justice White in Taylor v, 

Louisiana, supra, was summarized by him in 16 Cr. L. 3038 a 

follows:

"The states remain free to prescribe relevant 
qualifications for their jurors and to provide 
reasonable exemptions so long as it may be 
fairly said that the jury lists or panels are 
representative of the community. Carter v.
Jury Comm'n, supra, as did Brown v. Allen, 
supra; Rawlins v. Georgia, supra, and other 
cases, recognized bread discretion in the States 
in this respect. We do not depart from the 
principles enunciated in Carter. But, as we 
have said, Louisiana's special exemption for 
women operates to exclude them from petit juries, 
which in our view is contrary to the command of 
the Sixth and Fourteenth Amendments.

"It should also be emphasised that in holding that 
petit juries must be drawn from a source fairly 
representative of the community we impose no re­
quirement that petit juries actually chosen must 
mirror the community and reflect the various dis­
tinctive groups in the population. Defendants 
are net entitled to a jury of any particular 
composition. Fay v. New York, 332 U.S. 261, 284 
(1347); Apodaca v. Oregon, 406 U.S. at 413 
(plurality opinion); but the jury wheels, pools



cf names, panels cr venires from which juries 
are drawn must nor systematically exclude 
distinctive groups in the community and there­
's?/ fail to be reasonably representative there-

Actually, this doctrine was enunciated by Judge Frank

K. Johnson, Jr, on’June S, 1273, in Penn v. Eubanks, 360

F, Supp. 533, as follows:

"Jury service on the part of citizens of the 
United Scares is considered under our law 
in this country as one of the basic rights 
and obligations of citizenship. Jury service 
is a forts of participation in the processes 
cf government, a responsibility' and a right 
that should be shared by all citizens, regard­
less of race or sex or income. Any juror se­
lection plan, therefore, that results in de­
nying blacks, or •■--omen or persons of lower in- 
come the right to serve on juries in the courts 
of the State of Alabama is violative of the 
Fourteenth Amendment."

At the hearing on. the motion to quash, attorneys for 

defendant sought to put this case in point with cases already 

ruled on by the Supreme Court of the United States, As this 

Honorable Court is aware, the names on the jury roll or venire 

ray not carry any designation of racial origin. Appellant con­

tends that only 5.17 percent of the venire is black basing this 

on racial identification from a'list. On. cross-examination it



was orougnt

dps o ;

!P rtes

ere. Icnorec ov ~m

ners each knew less than 500 

ould find few blacks cn the 

ted areas In several years 

such testimony as that given

Judge Burney uft£ t on 5. 50 uan vpr. -f -n p there ?»■;as an average

ten blacks and cn a 4-2 man vendre there was an average of 8

10 blacks (R. O *534)y * w -w - y * Equally ignored was application of

provisions of Title O 0 O or t” - ~ 9 ~ —ion 21. Code o

5.nended * oupi-: citizens oljo r~- 0rn cn the

Drought ou 
C Quid Ti Q 0 (R. ?. 229).

he jury roll. It was 

onvicted of a felony and

quash showed a cons 

County? Jury Corrdss 

county on the jury

.fens that the luey men” is the only method 

he testimony disclosed that the poll list 

.ists, meeting ar.d discussing qualified 

iidzens. and attending rallies and corarouni 

testimony had at hearing on motion to 

entious effort cn the part of the Lawrence 

n to obtain a good cross section of the 

11 ar.d one fairly representative of the

community porn as to coxor ana sex.

Alabama’s jury system has been attacked so often in



- 25 -

both

been

criminal cases and various class actions that 

written thereto. In Carter v. Greene County,

much has 

24 L. Ed.

2d 549, 90 S. Ct. the following was held:

!rv7e have often said t! 
sent proportionally a 
community. See Swain 
208-209, 13 L. Ed. 2d 
Cassell v. Texas, 339 
Ed. 839, 846, 847, 70 
lection is largely by

sat no jury need repre­
cross-section of the 
v. Alabama, 380 US 202, 
753, 766, 85 S.Ct. 824; 
US 282, 286-287, 94 L. 
S. Ct. 629. Jury se-
chance; and no matter

the race of the defendant, he bears the risk
that no racial component, presumably favorable 
to him, will appear on the jury that tries him. 
The law only requires that the panel not be 
ourposefully unreoresentative. See Whitus v. 
Georgia, 385 US 545, 550, 17 L. Ed. 2d 599, 603, 
87 S. Ct. 643. Those finally chosen ray have 
no minority representation as a result of the 
operation of chance, challenges for cause, and 
peremptory challenges.”

And the eminent jurist, Judge Daniel Thomas, in the case

of Turner v. Spencer, 261 F, Supp, 542, stated:

”In remedying the wrong found by this court to 
exist concerning the exclusion of Negroes from 
jury service, the defendants are cautioned that 
if they apply Alabama's qualifications for jury 
service— particularly that qualification relating 
to good character and sound judgment and that 
qualification concerning the requirement that prospec­
tive jurors be able to read English— these quali­
fication requirements must be imposed fairly and 
objectively and administered to all regardless of 
race, in a nondiscriminatory manner. 'This court 
recognizes the practical difficulties which will



27

be faced by the jury commission in putting into 
the jury box the name of every qualified juror, 
and further recognizes that the law of Alabama 
does not require literally, that every qualified 
persons name be placed on the rolls or in the 
box. However, the law doss require that the 
jury commissioners not place so few names in the 
jury box as not to obtain a full cross-section 
of the county.n

Appellee contends that a good cross-section of the 

county was represented and that there was such compliance with 

State laws and Federal mandates as to justify overruling the 

motion to quash the venire. Gregg v. Maples, 236 Ala. 274, 239 

So. 2d 198* Defendant simply did not meet the burden of making 

out a prima facie case of racial discrimination.

Nor was there reversible error committed by the State 

exercising its peremptory challenges in striking two blacks or 

in striking one on a challenge for cause (R. pp. 742-744). This 

violated no constitutional right of accused. Swain v. Alabama, 

275 Ala. 508, 16 So. 2d 368, affirmed 380 U.S. 202, 85 Sup. Ct. 

824, 13 L. Ed. 2d 759.

Appellee respectfully submits that a reading of Taylor 

v. Louisiana, supra, in its entirety will convince this Honor­

able Court that the motion to quash venire was properly denied;



- 28 -

that no applicable new law is set out, ana that certiorari 

should be denied.
The appellant contends the overruling his motion for 

mistrial at the end of the case because of a statement made 

by the District Attorney, which appellant’s attorney said re­

ferred to the testimony of Ken Phillips that "No one took the 

stand to deny it" was reversible error as a comment upon his 

failure to testify.
This matter was discussed in the case of Swam v. 

State, 275 Ala. 508, 156 So. 2d 368, cert, den. 380 U.S. 202, 

85 S. Ct. 824, 13 L. Ed. 2d 759, wherein the Supreme Court of 

Alabama held:
"(12) During his summation to the jury, the so­
licitor made this statement: ’Gentlemen, do 
you think we have proved those three elements?
I submit to you that it is not denied, there 
is not a word come from this stand that denied 
the charge of rape. We have proved it to you, 
gentlemen, beyond a reasonable doubt that this 
prosecuting witness was raped. Now the only 
question that the defendant has raised here by 
his attorneys is the question of identity.’

"Appellant objected to this argument, and moved 
for a mistrial on the ground that it ’was with 
reference to the fact that the defense offered 
no testimony.’ The objection and motion were 
overruled and appellant excepted.



29

’’Code 1940, Tit. 15, Section 30 5, as amended by 
Act No. 124, appvd. June 23, 1949, Acts 1949, p. 
150, provides as follows:

"’On the trial of all indictments, complaints or 
other criminal proceedings, the person on trial 
shall, at his own request, but not otherwise, be 
a competent witness; and his failure to make 
such a request shall not create any presumption 
against him, nor be the subject of comment by 
counsel. If the solicitor or other prosecuting 
attorney makes any comment concerning the de­
fendant’s failure to testify, a new trial must 
be granted on motion filed within thirty days from 
entry of the judgment.'

II (13) The Statute does not prohibit a prosecutor 
from drawing reasonable inferences from the evi­
dence presented in a case, and statement to the 
effect that the evidence is uncontradicted or un­
denied are not prohibited by the statute. See: 
Welch v. State, 2S3 Ala. 57, 58, 81 So. 2d 901; 
Tompson v. State, 41 Ala. App. 353, 357, 353, 132 
So. 2d 386; Dixon v. State, 39 Ala. App. 575, 105 
So. 2d 354; Littlefield v. State, 36 Ala. App. 
507, 63 So. 2d 555, cert. den. 258 Ala. 532, 63 
So. 2d 573; Dickey v. State, 21 Ala. App. 644,
III So. 426. In Welch v. State, supra, the fol­
lowing was approved as a correct statement of the 
law:

"’It is generally held that a statement by the 
prosecuting attorney to the effect that the evi­
dence for the State is uncontradicted or undenied 
is not a comment on the defendant’s failure to 
testify.’"

The holding in Swain v. State, supra, was followed

and cited in White v. State, 44 Ala. App. 312, 208 So. 2d 222



30

In Gove v• State, 45 Ala. App. 131, 226 So. 2d 674, 
the Court held:

"In closing argument to the jury, the District 
Attorney said: ’The testimony of the State is 
uncontradicted and no one has denied it.*

"Stating merely that the evidence for the State 
is uncontradicted or undenied is not comment on 
the defendant’s failure to testify. Welch v.
State, 263 Ala. 57, 8.1 So. 2d 901; Thompson v.
State, 41 Ala. App. 353, 132 So. 2d 386; Swain 
v. State, 275 Ala. 508, 156 So. 2d 368."

In Whistenant v. State, 50 Ala. App. 182, 278 So. 2d

183, the statement "Until there is some reasonable explanation

from the witness stand, then you could convict the defendant,

and I am still waiting for an explanation" was held not to refer

to the fact that the appellant did not take the stand, but-

amounted to no more than the prosecution’s evidence is uncontra-

dieted.

Appellee’s contention is summarized in Warren v. State,

52 Ala. App. 35, 288 So. 2d 817 (1973) as follows:

"The import of the cases from this court and 
the Supreme Court is that to constitute error 
there must be a direct reference to the fail- 

. ' ure of the defendant to testify. Williams v.
State, 43 Ala. App. 343, 190 So. 2d 556;
Broadway v. State, 257 Ala.'414, 60 So. 2d 701;
Swain v. State, 275 Ala. 508, 156 So. 2d 368;
Vinet v. State, 38 Ala. App. 299, 83 So. 2d 357."



31

Appellee submits that as the statement did not 

amount to a comment upon defendant’s failure to testify, 

the motion for mistrial was overruled without error.

Holden v. State, 44 Ala. App.- 437, 213 So. 2d 869.

Appellee further points out that a reading of record 

pages 1235-1238 does not disclose what was actually said.

The only positive statement was that made by defense attorney 

saying that during closing argument he heard Hr. Black say 

"No one took the stand to deny it.” (R. pp. 1237, 1233.)

Mr. Black was of the opinion that he said T,the testimony of 

the Stare was undisputed.,! (R. p. 1236.) The Court under­

stood that it was "the statement was undenied.” (R. p. 1235.)

Under the provisions of Title 13, Section 262, Code 

of Alabama 1940, the Court Reporter is not required to take 

down arguments of counsel. See Lane v. State, 46 Ala. App.

637, 247 So. 2d 679 (1971). It is a well settled principal 

that an appellate court is bound by the record and cannot con­

sider contentions in appellant’s brief not supported by the 

record. Edwards v. State, 287 Ala. 588, 253 So. 2d 513 (1971).



- 32

Based on the foregoing cases, appellee submits

that there is no error in the record and the Alabama Court 

of Criminal Appeals correctly affirmed the case and that 

the writ of certiorari should be denied after a full con­

sideration of the record and briefs and arguments of coun­
sel.

CONCLUSION

In conclusion, appellee says that the opinion of the

Alabama Court of Criminal Appeals is correct; that the writ 

of certiorari should be denied, and the case affirmed by this 
Honorable Court.

Respectfully submitted

ASSISTANT ATTORNEY GENERAL
ATTORNEYS FOR APPELLEE



33

CERTIFIC .-TCI

I, David W. Clark, as Assistant Attorney General of 

the State of Alabama, do hereby certify that I have served a 

copy of the foregoing Brief and Argument on Writ of Certiorari 

upon Hon. U. W. Clemon, Suite 1600, 2121 Building, 2121 Eighth 

Avenue,. North, Birmingham, Alabama, 35203, and upon Hon. Elaine 

R. Jones, 10 Columbus Circle, Suite 2030, New York, N. Y.

10019, by depositing the same, duly stamped and addressed to 

each of them, in the United States Mail, postage prepaid, on 

this the ^jiSt-day of March, 1975.

/ J $

DAVID W. ' CLARK.
ASSISTANT ATTORNEY GENERAL