Brief and Argument of Attorney for Appellants

    IN THE UNITED STATES COURT OF APPEALS
FOR THE

EIEVENTH CIRCUIT

Case Number 84-7287

JUIIA P. WIIDER,

Pet it 1 oner-ApPel1ee

vs.

EAION M. LAMBERT, €t 81,

Respondents-APPellants

Appeal fron the
Middle Distriet of Alabana

cv 8r-H-580-N
1.

Brief and Argument of

?. U. JOHNSTON,

Attorney for APPellants

Acldress of Counsel:

District Attorney
P. 0. Box 442
Alieevi.1Ie, Alabama 55442
(zo>) 571-6r5t



STATBMENT REGARDING PREFERENCE

IhisappealisentitledtcpreferenceaSanappeal
fron a grant of habeas corpus under 28 U'S'C ' 92254'

STATEI,TENT REGARDING ONAI ARffi

Appel),ants have requestecl oral argunent in the

appeal of Sozeuan v. Ira.nbert, No ' 84-7286' a eaBe baeed

on virtually the Batre faete, but lnvolvin8 Inore 18sues'

If thie eourt grants oral argunent 1n Sozeman, appellants

respeetfullysuggestthatoralargunenti'nthigcase
roul,tl be Just ancl Judielally eeonomieal'

11



TABTE OF CONTENTS

PAGE

STATEMENT REGARDING PREFERENCE-----. ii

STATEMENT REGARDING ORAI ARGUUENT------- ii

TABTE OF CONTENTS iii-

TABIE OF CASES-- iV

TABIX OF STATIIIES v

STAIEMENT OF Ti{E ISSUES-- 1

STATEMEIIT OF TEX CASE

I. COIIRSE OF PROCEEDINGS AtrD
DISPOSITION IN COiIRT SETOW--

II. STATEMENT OF THE }ACTS----.--

III. STATXI{ENT OF THE STANDARD
OF REVIEW

SU},II,IARY OF TEE ARGITUENT------

STATEMENT OF JURISDICTION---

ARGIIUENT-------

CONCIUSION-----

CERTIFICATE OF SERVICS

2

7

10

11

12

1'
17

18

l.11



TABI,E OF CASES

Brazell v. State,
@25,326

(ara. Crin. App . 1 982)-------
Bryant v. State,
@541 ,541

(At.crim.App. 1982),
eert. den .- 428 So.2d 645
(lra. 19a1)-------

Chambers v. Statet
@8,950(lta. crin.App . 1 982)-------
Jaekson v' virginia,
ffigg s.ct.

2781 , 51 l.Ed.2d 550,
reh. den. 444 U.S. 890'
TO0 sffi. \95, 52
t.Ed.2d 125 (tglg)-------

Wainwrieht v. Sykes'
ffi>t1 t

llilder v. State,
@1 51

(lta.Crin.App. ), eert.
aen.401 sc.2a 157-
Tl[Ta) , eer!. den . 454
u. s. i oflTt gETT----

15

16

16

PAGE

9

11 ,15

11

iv



TABI,E OF STATUTES

Cocle of Alabana, 1975t

PAGE

11,14

14

14

14

5,15

v



STATEMENT OF THE ISSUES

I.
WHETHER DEFENDANT WAIVED ANY

OBJECTION TO THE TRIAT COURT'S ORAL

CHARGE BY FAITING TO PROPERTY OBJECT
AND ASSIGN SPXCIFIC GROUNDS.



STATEMENT OI' THX CASE

I. Course of Proeeedings and Dispcsitions in
the Court Below

Thie is an appeal frcm the suEIIIary judgnent grant of

a habeas eorpus petiti.on in the Middle District of

Alabama.

The origin of this litigation was an indietnent

against Ms. t{ilder returned by the Pickens county

(Alabama) Grand Jury on Novenber 1, 1978. (T. 520-21)

That instrurnent reatl as fo]lors:

The Grand Jury of said County charge

that, before the findlng of thls

Indictroent, Julie P. Yilder, whose

neme to the Granct Jury is otherviee

unknovn:

COUNT ONE

did vote more than onee r or d1d

cleposit more than one balIot for the

same office as her vote, or did vote

i1Iega1Iy or fraudulent1Y, ir the

Dernoeratic Prinary Run-cff Election

of September 25, 1978'

2



COUNT TWO

di.d vote more than onee as an

absentee voter, or did dePcsit more

than one absentee bal1ot fcr the snme

office or offices as her vote, or did

cast iI}egal or frauclulent absentee

ba1Icts, in the Demoeratic PrinarY

Run-off Xlection of SePtenber 25,

1 978,

COUNT THREE

did east ilIega1 or frautlulent

absentee ballots in the Democratic

Prirnary Run-off Election of Septenber

25, 19?8, ir that ehe did dePosit

wlth the Plckens CountY Circuit

Clerk, absentee ballots which uere

fraudulent antl whlch she knew to be

frauclulent, (T.211)

these charges Yere based upcn s""tion 17-21-1 of the

Code of Alabana, 1975' reproclueed here:

9ll-zl-t. Illegar voting or

attempting tc vote.

1



AnY Perscn whc votes ncre than onee

at any electicn held i.n this state'

or depcsits lnore than one ball'ct for

the same office as his vote at sueh

electi'on, or knowingly attempts tc

vote vhen he is not entitled to do

Bor or is AuiltY of any kind of

i1legal or fraudulent voting, EuBt'

on eonvi ct ion , be iropr isoned in the

PenitentiarY for not less than two

nor loore than five Years, &t the

discretion of the iury'

uj.lder pled not gulIty ancl went to tr1a1 before the

EonorableClatusJunkin,CircuitJudge,andaiuryon
llay 29, 1g7g. (1. 1) She vas nost ably representetl

by two retainetl counselors, Solonan S' Seay' Jr' and J'

I,. Chestnut, Jr. (t. 2)

0n May 11, 1979, the jury returned a verdict of

epi'}tyasehargedinthelndlctnentandsetthesentenee
at five years. (f . 515) tfre Circuit Court then ad judged

the defendant guilty and entered sentenee accordingly'

(r. ,1 ?-1 8)

4



I'1rs. Wilder then sough t the f ollowing relief :

1 . Appeal tc the Al,abama court of crimlnal Appeals;

aff irmed with opinion on Ivlareh 51 , 1981 . (n. 13i the

Manuseript Opinion is Exhibit D to respcndents' Motion to

Disniss the habeas petition [n. 47) ancl ie reportetl at

401 So.2d 1 51 )

2. i{rit of certi,or&ri in the Alabama suprene court;

tlenied on July 24, 1981 . (R. 14i 401 So.2d 15?)

5. Writ of certiorari in the suprene court of the

United States; tlenied on November 16, 1981 . (n. 11i 454

u. s. 1057 )

Ms. Wi,lder dld not eeek a collateral reviev of her

convietion in the state eourts. (R. 14) After being

denied by the Suprene Court, she f1led the petition for a

writ of habeas eorpus uncler 28 U.S.C. 52254 in the Hlddle

District of Alabama on June 8, 1981. (n. 12, €t seq. )

After a hearing upon the petitioner'8 rnotion for

sutrEary judgnent, (the transcript of that hearing is

Volume 2 cf the Record), the Distriet Court, P€r

Honorable Truman Hobbs, granted sunmary judgment for Ms'

wilder. (n. 1 85 )

Judge Hobbs' opinion underlying h1s deeision will be

foundatR.l5Tandlnthe''Recordxxeerpt''filedbythe
appellants. The judgment and opinion were entered on



Apri.I 1r, 1984. (R. 157, 180) fne habeas respcndents

filed a timely Nctiee of Appeal on April 27, 1 984 (n.

181) bringing the matter of the grant of the vrit to this

Honorable Court.

several notions rere f1led in the district court

after this appeal vas docketed (See R. 4-6 of the

Supplenental Record) Uut those natters ere not raised in

this brlef. Appellants note, horever, that the

petitioner filed a"loenclnent on July 25, 1984, narning a

dlfferent respondent, pursuant to the district

courtrs order of July 13r 1984. (R.506; Supp. R. 5)

5



II. Statement of the Facts

[ffre facts set out be]ow are taken primarily from

two scurees. Those refleeted in the transcript from the

Piekens county trial are cited by rrTtr and a page number'

Those supported by the District Court's opinion (tfre

opinion appealed froro) are followed by an rrprr reference'

That opinion is found at pages 151 to 185 of the record

on appeal. ]

The dlstriet court entered a ioi,nt ltlemorandun

6pinion in this ease and that of Bozeman v. Iranbert (on

appeal in this court as No. 84-?285). Appellants agree

vith the courtrs introduetory sumBary of the factuaL

baekground of the case:

Both petitloners Yere convieted under

a etatute Proscribing voting trore

than once or voting vhen one is not

entltled to do 8or in eonnection rith

their participation in the casting of

absentee ballcts in the Democratie

primary runoff on September 25' 1978

in Pickens County' The eontention of

the prosecution nas, essentially'

that petltioners procured absentee

ballots in the names of registered'

7



voters and vcted the ballcts

themselves. SPeeif i'eal1Y, the

prosecution contended that

pebitioners would take appllcations

for absentee ballcts around to

elderly blacks and ask then if theY

wanted to be able tc vote without

going to the Po}Is. Itlost of these

elderly people Yere illiterate' so

petltioners ordinarily rculd help

them fill it out, and the voter would

raake an rrxrr mark. Sometimes the

application voulcl direet that the

ballct be rnailed to the voter ancl

sometimes tc one of three addresees'

l{i}der's address was a"nong the three;

Bozemanrs Yas not. Sither

petitioners or the voter ucultl turn

the applieations for an absentee

ballot in to the Piekens CountY

C1erk's office. Aceording tc the

prosecution, petitioners obtained

thirty-nine of these bal1ots, filled

thero out, and signed the registered

voterst nanes to them. tfilder ancl

8



Bozernan tcok bhe ballote tc a notary

Public, vho notarized then upon

Petltioners' assuranee that the

signatures sere valid' The ballote

sere subsequently voted' (R'158-59)

Appellantealeoagreethattheevideneewag

sufficient under Jackeon v. virSinia, +4' U.S. JO], 99

S. Ct . 2781 , 61 L.Eal ' 2d 550, g' @' 444 U' S' 890 ' 1 00

S.Ct. 1g5, 52 l,.xal.2d 125 (1979) to convict the

dlefenclant.



III. Statement of the Standard Review

Appellants understand the etandard of review to be

a question siroply of vhether the distriet eourt has

complied with the ease law from the Suprene Court and the

Bleventh Clrcuit aB set out in the argument'

10



Sumnary of the Argunent

Any posBible error on the part of the Pickens county

cireuit court in eharging the Jury on section 15-5-15 cf

the Alabana Code nas vaived by clefentlantte failure tc

obJect and assign grounds for obJection. walnwri8ht v.

Sykes, 44, U.S. 2 (1977) Considerlng the eviclence, the

counsel,, and the trial courtrg Jury charge

eannot be sai.tl that the defentlant YaB

notice by the late addltion of a neu eharge'

of

it
of

theories

t ogetheq,

depr ivetl

'l 1



Statement of Jurisdietion

The distriet court had jurisdiction to hear this

habeas corpus under 28 U.S.C. 52254. The appeal lies in

this eourt pursuant to 28 V.S.C. $1291 '

12



ARGUMENT

1.

IIIHETHER DEFENDANT WAIVED ANY

OBJECIION TO THE TRIAI, COURT'S ORAI'

CHARGE BY FAIIING TO PROPERIY OBJECT

AND ASSIGN SPECIFIC GROUNDS.

The dlstrict eourt granted !,1s. Uilder's petltion

based upon the trial judgets oral charge tc the iury'

since the trial of thls ease neeessarily preceeded its

appeal (lIilder v. State, 401 So.2d 151 (lta.Crin.App'),

cert. den. 4O1 So.2d 167 (lta), eert' tien' 454 U'S' 1O57

I f ggt ] ) , there yas no ease law defining the neaning of

the phrase "any kind of lI}egal ?" fraudulent voting" in

the statute that Ms. lJilder ulas charged trith violating'

In the opinion Just cited, the court of crimlnal Appeals

held that "the rords I 1IIegal 0r frauduLent' as used in

$t Z-el-t are merely descriptive of the intent necessary

for the conniesion of the offense"' Wililer v' State' 401

So. 2d. at 159.

}Iithout this guiclance, the trial court understand-

ably sought to advise the iury on the contribution that

the elause, "or is gullty of any kind of lIIegaI or

fraudulent voting," nacle to the statute. The court did

this by defining "illegaIrr and "fraudulent" by their

usual 1egaI definitions.

15



The court then read or explained scme ccde seetions

which the habeas eourt now finds unaceeptable. r'irst'

the ccurt interpreted $17-10-l (identlfied in the

transeript as "1721-r"). That statute does nothlng mcre

than explain the eligibility requirenents and proeedures

f or voting in an I'absentee" fashion. (f 'lOg)

The eourt then explained seetion $tZ-tO-e

(erroneously clenominated 17-1O-7 in the tranecript),

which merely prescribes the forn of the absentee baLlot

and mandates an affidavlt to go vlth ib. (t.rog-to) The

trial judge progressed to $17-10-7 and read the 'form

afficlavit" set out in that section' (t'110-1 1)

The foregoi.ng sections are all relatively innocuous '

Fina1ly, the trial judge instructed on $tl-l-tl of the

Code. That eection condlerans falee Evearing with regard

"to any matters of faet requiretl or authorized' to be made

under the election Iav...r' and states that one who So

forswears shall be guilty of perjury' (T'111 )

The habeas eourt takes issue with the charge on

$rl_E_rl in light of a subsequent instruction:

tr'urther, the State charges that the

defendant witnessecl or had knovleclge

that a Notary Publle falsely notari-

zed. or attested to the authenticity

14



of the bal]cts bY attesting the

perscns were before him and sc for bh

as provided in the affldavit. If the

ba1lct rras falsely attested tc, then

such a baIIot vould be i}Iegal and

any person vho PartlclPated in a

seheme to east that ballot with know-

ledge of that fact vould conmit the

aets prohibited by Section 17-7'1 of

the Alabama Code of 1975 if in fact

that ballot Yas east.

(r. ltz)
Regarding these eharges, I{r. Seay argued, "The

Court aleo eharged the iury on the perJury under Title

11. We objeet to that portion of the court's eharge.

The court alsc charged'rather extensively rhat the

State's contentions in this case are. And we obJeet to

all of that portion of the Court's charge'" (f':tf)

Mr. Chestnut also found fauLt: "ue object that the

charge goes to Jaws relating to fraudulent notary sea]s,

whieh 1s beyond the purview of this..." (n' 715-15)

The ]aw in Alabama on the question of assigning

speeific grounds nith respect to questicnable iury

charges is striet, settled, and unifornly applled '

15



slmply put, the trial ecurt will nct be plaeed in errcr

vhere the crimina] defendant fails to object and assign

speeif ie ground.s for hie objection. E9-9, e'g', Bryant v'

State, 428 So.2d 641, 543 (afa.Crirn'App' 1982), cert'

den. 4ZB So.2d 645 (a:.a. t 981) ; Brazell v. State , 421

So.2d ,21, 526 (l:.a.Crin.App. 1982); Charnbers v' State,

4 1 8 So . 2d 948 , 950 (.A}a. Cr iro . App . 1982) '

Here, the only grounds assignecl vere that the "laws

relating to fraudulent notary seals Iare] beyond the

purview of this Iease]." Those grounds are patently

insufflcient to preserve any alleged error ' Therefore,

the petltion is due to be denied on all assertions

coneerning the trial eourt'e oral charge unless

petltioner can ehow eause for failure to object and

aetual prejucliee resulting fron the charge. tiainwriSht

v. sykes, 451 u.s. 72 (tgZZ)-

16



Appellantre

court ehould be

for proeeeclings

ruIlng.

CONCI,USION

subnit that the dlecielon of the trial

reversecl and the case should be renandedl

eonsietent uith thie Eonorable Court's

FOR APPEI,IANTS

17



CXRTIFICATE OF SERVICE

I herebY eertifY that I have this /lc u", cr

September,lgs4,servedaeopyoftheforegoingonthe
attorneys for the Petitioner by placing snme in the

united states nail, postage prepaid and. addressed as

fcllows:
Yanzetta Penn Durant
Attcrney at l,an
519 llartha Street
I{ontgon€ry , Al 56104

L,an1 Guinier
Attorney at Iraw
99 Hudson Street
15 f'loor
New York, l[Y 1001,

ADDRESS OF COUNSXL:

P.0. Box 442
Alicevi11e, AI,
(2o5) ltvelst

75442

APPEITANTS

18