Beecher v. Alabama Brief and Argument on Writ of Certiorari of William J. Baxley, Attorney General, and David W. Clark, Assistant Attorney General
Public Court Documents
March 20, 1975

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Brief Collection, LDF Court Filings. Beecher v. Alabama Brief and Argument on Writ of Certiorari of William J. Baxley, Attorney General, and David W. Clark, Assistant Attorney General, 1975. a274be24-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/28a007e2-db16-4f6b-8034-3309f54b2511/beecher-v-alabama-brief-and-argument-on-writ-of-certiorari-of-william-j-baxley-attorney-general-and-david-w-clark-assistant-attorney-general. Accessed July 16, 2025.
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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 1 I N D E X Page Statem en t o f th e Case ....................................................., ............. .. i Statem ent o f th e F 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: | Do you .have the files for this case in your office7 f ] No [] Current only [] Complete Q _ 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