Hamilton v. Alabama Brief and Argument of Respondent

    In the

Supreme Court of the United States
October Term, 1961

No. 32

CHARLES CLARENCE HAMILTON, 

Petitioner,

versus

STATE OF ALABAMA 

Respondent.

ON WRIT OF CERTIORARI TO 

THE SUPREME COURT OF ALABAMA 

BRIEF AND ARGUMENT OF RESPONDENT

MacDonald Qallion 
Attorney General 
State of Alabama

George D. Ments 
Assistant Attorney General 
State of Alabama

State Capitol 
Montgomery 4, Alabama

Counsel for Respondent



1

I N D E X  

Subject Index
Page

Opinions Below ................................................................  1

Jurisdiction ........................................................................  1

Questions Presented ... .....................................................  2

Statute and Constitutional
Provisions Involved ................................    3

Statement ..........................................................................  3

Summary of A rgum ent..................................................... 5

Argument ..........................................................................  5

Conclusion ..........................................................................  12

Certificate .......      13



n

CITATIONS
Cases: Page

Avery v. Alabama, 308 U.S. 444 ................... .........  6

Baker v. State, 209 Ala. 142, 95 So. 467 .................  11

Betts v. Brady, 316 U. S. 455 .....................................  7, 9

Brown v. Mississippi, 297 U. S. 278 .........................  6

Canizio v. New York, 327 IT. S. 8 2 .............................  8, 9

Council v. Clemmer, C.A.D.C. 1949, 177 F.
2d 2 2 ...................................:..................................... 8

Crooker v. California, 357 U. S. 433, 440 .................  6, 8

DeMaurez v. Swope, 9 Cir. 1939, 104 F. 2d 758.........  8

Ex Parte Seals, 271 Ala. 622,126 So. 2d 474.............  7

Frank v. Mangum, 237 U. S. 309 .............................  6

Gibbs v. Burke, 337 IT. S. 773 ..................................... 8

Hamilton v. Alabama, .....  IT. S........ , 81 S.
Or. 388 ................................................................    2

Hamilton v. State, 270 Ala. 184, 116 So. 2d
906, cert. den. 363 U. S. 852 .................................  6

Johnson v. Williams, 244 Ala. 391, 13 So. 2d
683 ..........................................................................  7

Jones v. Cochran, F la......., 125 So. 2d 99..........  9

McNeal v. Culver, 365 IT. S......, 81 S. Ct. 413,
5 I.. ITd.2d 445 ........................................................  9

Madden v. Kentucky, 309 U. S. 8 3 ...........................  6

Miller v. Texas, 153 U.S. 535 .....................................  6

Powell v. Alabama, 287 U. S. 4 5 ....................... ........ 6, 9

Sheppard v. State, 257 Ala. 626, 60 So. 2d 329.........  11



m

CITATION S— (Continued)
Cases: Page

Speiser v. Randall, 357 IT. S. 513..............................  6

State y. Sullivan, 10 Cir. 1955, 227 F. 2d 511, 
certiorari denied Braasch v. State of Utah,
350 U. S. 973 .........................................................  6, 8

United States v. Stevenson, I). C. D. C. 1959,
170 F. Supp. 315.....................................................  8

Uveges v. Pennsylvania, 335 U. S. 437 .....................  8

Williams v. Kaiser, 323 U. S. 471 ...........................  6

Constitution and Statu tes:

Code of Alabama 1940 : Title 14, Section .85..............  3

Title 15, Section 318.............  3, 5

Title 15, Section 423.............  3, 11

Constitution of the United States: Four­
teenth Amendment ..................................... .........  3, 9

United States Code: Title 28, Section 1257.............  1, 3



In the

Supreme Court of the United States 
October Term, 1961

No. 32

CHARLES CLARENCE HAMILTON, 

Petitioner, 

versus

STATE OF ALABAMA 

Respondent.

ON WRIT OF CERTIORARI TO 

THE SUPREME COURT OF ALABAMA 

BRIEF AND ARGUMENT OF RESPONDENT

I
OPINIONS BELOW

The opinion of the Supreme Court of Alabama denying 
petitioner’s petition for leave to file an application for writ 
of error coram nobis in the trial court is reported at 271 
Ala. 88, 122 So. 2d 602, and is printed in R. pp. 27-35. An 
earlier opinion of the same court affirming petitioner’s judg­
ment of conviction is reported at 270 Ala. 184, 116 So. 2d 
906 (See also Appendix A of petitioner’s brief, pp. la - 10a), 
and this Court’s denial of certiorari is reported at 363 U. S. 
852.

II
JURISDICTION

Pursuant to Title 28, United States Code, Section 1257, 
petitioner was granted a writ of certiorari by this Court on



9

January 9, 1961 to review the judgment of the Supreme 
Court of Alabama, rendered on August 15, 1960, denying his 
petition for leave to file an application for writ of error 
coram nobis in the Circuit Court of Jefferson County, Ala­
bama (See “Opinions Below,” supra). Hamilton v. Alabama, 
..... U. S.... ._, 81 S. Ct. 388.

Ill
QUESTIONS PRESENTED

1. Whether there is a violation of due process of law or 
an impingement of fundamental rights by the Alabama Su­
preme Court’s denial of a petition for leave to file an appli­
cation for writ of error coram nobis in the trial court when 
the petition alleges that the petitioner pleaded not- guilty to a 
capital crime while not represented by counsel at his ar­
raignment on March. 1, 1957, but it makes no showing or 
effort to show that petitioner was prejudiced or disadvan­
taged in any way by such absence of counsel at arraignment, 
when the record shows that competent counsel, who was ap­
pointed to represent petitioner on March 4, 1957, stated that 
he would not have entered any different plea than the one of 
not guilty which had been entered by petitioner on March 
1, 1957, and when the record shows that said counsel actively 
represented petitioner at his trial on April 23, 1957.

2. Whether, under the total facts of the case and the 
allegations and evidence presented by him to the Supreme 
Court of Alabama in his petition for leave to file an applica­
tion for writ of error coram nobis, this petitioner has estab­
lished the existence of such prejudice or disadvantage by 
reason of his having been unassisted by counsel at arraign­
ment when he interposed a plea of not guilty to an indictment 
charging him with a capital crime as to warrant this Court’s 
finding that an ingredient of fundamental unfairness actively



3

operated in the process that resulted in his conviction and 
death sentence and that, as a consequence, he was denied 
due process of law.

IV

STATUTE AND CONSTITUTIONAL PROVISIONS 
INVOLVED

Code of Alabama 1940 : Title 14, Section 85

Title 15, Section 318 

Title 15, Section 423

Constitution of the United S tates: Fourteenth Amend­
ment

United States Code: Title 28, Section 1257

V
STATEMENT

The pertinent facts of this case are set out in detail in 
the opinions of the Supreme Court of Alabama cited in 
“Opinions Below,” supra, but, briefly, they are as follows:

The offense of which petitioner stands convicted occurred 
on October 12 or 13, 1956 (R. p. 1; Appendix A, petitioner’s 
brief, p. 2a) ; on November 9, 1956 the grand jury of Jeffer­
son County, Alabama, returned a one-count indictment 
charging petitioner with the offense of burglary of an in­
habited dwelling in the nighttime with intent to steal (R. pp. 
1, 28) ; on January 4, 1957, while represented by competent 
(R. p. 35) court-appointed counsel, Honorable Clell I. May- 
field, petitioner was arraigned on that indictment and plead­
ed not guilty (R. pp. 1, 4,13) ; on February 12,1957, a second 
indictment, consisting of two counts, was returned against 
petitioner, the first count charging burglary of an inhabited



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dwelling in the nighttime with intent to steal, and the second 
count charging burglary of an inhabited dwelling in the 
nighttime with intent to ravish. (R. pp. 2,28).

Both the first and second indictments arose out of the same 
transaction (R. p. 28), and Mr. Mayfield, who considered 
himself as representing petitioner for the second case and was 
aware of the fact that a second arraignment would be had on a 
day certain (E. pp. 13, 14, 28 ), did not attend the second ar­
raignment because he was of the opinion that it  was a mere 
formality and that his presence would not be necessary since a 
plea of not guilty would again be entered (R. p. 13) ; on March 
1, 1957, while unattended by any counsel, petitioner was ar­
raigned upon the second indictment and pleaded not guilty 
(R. pp. 2, 4, 28) ; on March 4, 1957, in order that he might 
receive his fee for the second case, Mr. Mayfield was again 
appointed to represent petitioner (R, pp. 4, 15) ; on April 
23, 1957, while actively represented by Mr. Mayfield (See 
record filed with the petition for writ of certiorari, No. 1026 
Misc., October Term, 1959), petitioner was tried by a jury, 
was found guilty of the second count of the second indict­
ment, and was sentenced to suffer death (See record filed 
with the petition for writ of certiorari, No. 1026 Misc., 
October Term, 1959) ; on April 24, 1957 the first indictment 
was nolle prossed (R. pp. 1, 4) ; under the automatic appeal 
statute the judgment was reviewed and affirmed by the Su­
preme Court of Alabama, and certiorari was denied by this 
Court (See “Opinions Below,” supra).

Subsequently, petitioner filed in the Supreme Court of 
Alabama a petition for leave to file an application for writ of 
error coram nobis in the Circuit Court of Jefferson County, 
Alabama, alleging, inter alia, that lie was without counsel on 
March 1, 1957 when he was arraigned and pleaded not guilty, 
but said petition contained no showing or effort to show that 
he was prejudiced or disadvantaged in any way by the ab­
sence of counsel when he was arrainged and entered his plea



o

of not guilty (R. pp. 1-3, 35) ; the petition for writ of error 
coram nobis was denied by the Supreme Court of Alabama 
and, upon timely petition therefor, this Court granted a writ 
of certiorari to review the state court’s judgment (See “Opin­
ions Below,” supra).

VI
SUMMARY OF ARGUMENT

To warrant a state court’s issuance of the extraordinary 
writ of error coram nobis, based on an indigent accused’s 
allegation that he pleaded not guilty to a. capital charge 
while not represented by counsel at his arraignment, the 
petition must make a showing of or, at least, proffer evidence 
that petitioner, who shortly after arraignment and during 
his subsequent trial was assisted by competent counsel, suf­
fered substantial prejudice or disadvantage as a result of 
the absence of counsel when he entered his plea.

The total record in this case clearly demonstrates that 
petitioner was not so “taken advantage of” as to violate due 
process of law.

VII
ARGUMENT

1.
The Supreme Court of Alabama has stated, in effect, that 

in petitioner’s case there was a violation of Code of Alabama 
1940, Title 15, Section 318 (R. p. 29; petitioner’s brief p. 3), 
providing that the trial court must appoint counsel to rep­
resent an indigent person who is charged with a capital crime. 
Had petitioner, on the appeal from the judgment of his con­
viction, been able to attack successfully the trial court’s 
judgment entry which, as was subsequently developed by 
competent evidence, incorrectly stated that he was repre­
sented by counsel at the time of his arraignment on March



6

1, 1957, conceivably his case might have been reversed and 
remanded; however, by the method employed, he was unable 
to do this under Alabama law. Hamilton v. State, 270 Ala. 
184,116 So. 2d 906, certiorari denied 363 U. S. 852 ; Appendix 
A, petitioner’s brief, pp. 4a - 6a.

Therefore, said violation of state law should not 
be considered in this proceeding because the juris­
diction of a federal court is limited to the determin­
ation of questions relating to the denial of rights under 
the federal constitution and does not extend to the adjudica­
tion of nonfederal questions of state law. State v. Sullivan, 
10 Cir. 1955, 227 F. 2d 511, certiorari denied Braasch v. State 
of Utah, 350 U. S. 973. This Court is not concerned with any 
contravention of a state’s statutes or constitution. Powell v. 
Alabama, 287 U. S. 45; Williams v. Kaiser, 323 U. S. 471; 
Madden v. Kentucky, 309 U. S. 83. A decision of a state 
court resting on grounds of state procedure, which does not 
offend some principle of justice so rooted in the traditions 
and conscience of our people as to be ranked as fundamental, 
does not present a federal question. Speiser v. Randall, 
357 U. S. 513; Avery v. Alabama, 308 U. S. 444; Brown v. 
Mississippi, 297 U. S. 278; Miller v. Texas, 153 U. S. 535; 
Frank v. Mangum, 237 U. S. 309; Croaker v. California, 357 
U. S. 433, 440.

Having been unsuccessful in his appeal, petitioner sought 
relief by applying for a writ of error coram nobis which, 
under Alabama law, is available to a person who claims that 
his conviction and sentence is due to failure to observe that 
fundamental fairness essential to every concept of justice, 
even after the judgment has been affirmed by the Supreme 
Court of Alabama.

However, an application for a writ of error coram nobis 
should make an adequate showing of the substantiality of the 
petitioner’s claim to the satisfaction of the state appellate 
court. A mere naked allegation that a constitutional right



7

has been invaded will not suffice. The application should 
make a full disclosure of the specific facts relied upon, and 
not merely conclusions as to the nature and effect of such 
facts. The proof must enable the court to ascertain whether 
under settled principles pertaining to such writ the facts 
alleged would afford at least prima facie just ground for the 
issuance of the writ. State appellate courts are authorized 
to exercise their discretion in matters of this character and 
should look into the reasonableness of the allegations of the 
petition and to the existence of the probability of the truth 
thereof. Jofmson v. Williams, 244 Ala. 391, 13 So. 2d 683; Ex  
Parte Seals, 271 Ala. 622, 126 So. 2d 474.

This, then, brings into focus the question of whether the 
Supreme Court of Alabama erred in denying petitioner’s 
coram nobis petition which, in pertinent part, alleged that 
counsel was not appointed to represent him until three days 
after he, without benefit of counsel at his arraignment, had 
pleaded not guilty to a capital crime, but which contained 
no allegation and was not supported by any evidence that he 
was prejudiced or disadvantaged in any way by such absence 
of counsel at his arraignment (E. pp. 1-7).

The state court grounded its denial of this petition on the 
fact that there was no fundamental unfairness which would 
violate due process of law inasmuch as the petition contained 
no allegation or attempt to show that petitioner was preju­
diced or disadvantaged in any way by the absence of counsel 
when petitioner interposed his plea of not guilty.

Such reasoning by the Supreme Court of Alabama finds 
support in the decisions of several federal courts dealing 
with capital as well as non-capital cases. In Betts v. Brady, 
316 U. S. 455, a non-capital case, this Court indicated that 
only if the defendant lias been disadvantaged under the facts 
shown to the court, denial of counsel is a denial of due



process. In Canizio v. New York, 327 U. S. 82, it was held 
that the constitutional right of an accused in a state court to 
the assistance of counsel will not he deemed to have been 
infringed, so as to require the setting aside of his conviction 
of robbery in the first degree, unarmed, upon his plea of 
guilty, where, although he was without counsel when ar­
raigned and wdien he pleaded guilty, was unfamiliar with his 
legal rights, and may not have been informed by the court of 
his right to counsel, it appears that in long hearings during 
the day of sentence, he wras actively represented by counsel, 
who could have moved to withdraw the plea of guilty, but 
apparently thought that it would be to Ids client’s best in­
terests not to do so.

Almost invariably it is held that absence of counsel at 
arraignment does not constitute a violation of due process 
wdiere the accused enters a plea of not guilty. Council v. 
Clemmer, C.A.D.C. 1949, 177 F. 2d 22; Be Maurez v. Swope, 
9 Cir. 1939, 104 F. 2d 758. This is particularly true where, 
shortly after the unaided accused enters a plea of not guilty, 
counsel is furnished for the preparation for his trial and for 
his trial itself. United States v. Stevenson, D.C.D.C. 1959, 
170 F. supp. 315; State v. Sullivan, 10 Cir. 1955, 227 F. 2d 
511, certiorari denied Braasch v. State of Utah, 350 TJ. S. 973. 
I t  is noteworthy that State v. Sullivan, supra, involved a cap­
ital crime in a state court.

2.

The ultimate test is “fundamental unfairness” (Croolcer 
v. California, 357 U. S. 433), and each case must stand on its 
own particular facts in a determination as to whether or not 
lack of representation by counsel constitutes a denial of due 
process. Uveges v. Pennsylvania, 335 U. S. 437; Gibbs v. 
Burke, 337 U. S. 773. This court has stated that the test of 
disadvantage is ignorance, illiteracy, feeble-mindedness, or



9

other like inadequacy of the defendant which makes him 
incapable of conducting his own defense in that particular 
stage of the proceeding. Powell v. Alabama, 287 IT. S. 45. The 
defendant’s lack of familiarity with his legal rights has been 
added. Canizio v. New York, 327 U. S. 45. Later, the test 
was expanded to include mental illness and incapability of 
questioning witnesses where highly complex legal issues are
involved. McNeal r. Culver, 365 U. S.........., 81 S. Ct. 413,
5 L.Ed. 2d 445.

In Jones v. Cochran, 125 So. 2d 99, the Supreme Court 
of Florida aptly stated:

“The necessity for the appointment of counsel in order 
to meet Fourteenth Amendment requirements is in­
fluenced largely by the following factors: (1) the
gravity of the offense, (2) the nature and complexity of 
the issue, (3) the age of the defendant, (4) his mental 
capacity, (5) background, including education and 
experience, (6) knowledge of law and procedure and,
(7) the degree of protection given during the trial as 
appears from the conduct of the Court or prosecuting 
officials. 93 L.Ed. 149. No one of these factors alone 
is decisive. As pointed out in Betts v. Brady, supra 
(316 U. S. 455), it is necessary to appraise the totality 
of the facts and decide whether the need for counsel is 
so great that the deprivation of such assistance pro­
duces a fundamental unfairness.”

Applying these tests to the case at bar, it seems clear that 
the Supreme Court of Alabama correctly denied petitioner’s 
coram nobis petition.

Admittedly, the offense was of the utmost gravity, but 
the issues involved were not complex. The record does not 
reflect petitioner’s age, but there is no claim made that he



10

was unusually young. Investigation by the State Board of 
Pardons and Paroles reveals that he was not ignorant, il­
literate, or feeble-minded, having reached the eleventh grade 
in school, and that two years thereafter he enlisted in the 
United States Army in which he served from 1950 until Janu­
ary 1956 (See record filed with the petition for writ of 
certiorari, No. 1026 Misc., October Term, 1959, p. 8). This 
last mentioned record, pages 9 to 11, coupled with his long 
military service, dispels petitioner’s intimation that he was 
insane or mentally ill. Pages 55 to 79 of the same record 
also reflect petitioner’s non-professional ability to testify in 
his own behalf and to question witnesses.

Respondent has no knoAvledge of petitioner’s familiarity 
with his legal rights, but he was present at his first arraign­
ment on January 4,1957 when court-appointed counsel plead­
ed him not guilty to an indictment (R. pp. 1, 4, 13) which, in 
part, was identical with the second indictment to which 
petitioner, unaided by counsel, pleaded not guilty when ar­
raigned on March 1, 1957 (R. pp. 2, 4, 28). The second in­
dictment, as well as the first indictment, arose out of the 
same transaction (R. p. 28). Petitioner received no ill treat­
ment at the hands of the trial judge or the prosecuting attor­
ney. Furthermore, it is reasonable to suppose that prior to 
receiving his dishonorable discharge from the Army in Janu­
ary, 1956, petitioner was tried by a General Court-Martial at 
which he was present and where he observed the legal pro­
ceedings (See record filed with the petition for writ of 
certiorari, No. 1026 Misc., October Term, 1959, p. 8).

Counsel was reappointed to represent petitioner on March 
4, 1957, three days after the second arraignment (R. pp. 4, 
15). Counsel, whose competence is not questioned (R. p. 35), 
explained why he considered it unnecessary for him to be 
present at the second arraignment, and stated that had he 
been present he, too, would have entered a plea of not guilty



11

(E. p. 13). Counsel actively represented petitioner at the 
trial on April 23, 1957, which was approximately fifty days 
after the second arraignment.

I t  might be argued that had petitioner been represented 
by counsel at the second arraignment, a motion for a change 
of venue might have been filed. To this, respondent wishes to 
point out that there was no claim made that the climate of 
opinion in Jefferson County was such that petitioner could 
not get a fair and impartial jury trial. There is no claim 
made that discrimination was practiced in the selection of 
the grand or petit juries. There is no claim made that a 
continuance would have benefited petitioner.

I t might be argued that had counsel been present, lie 
would have entered a plea of not guilty by reason of insanity. 
True, Code of Alabama 1940, Title 15, Section 423 (See Ap­
pendix A), provides that such a plea must be interposed at 
the time of arraignment, but the Alabama courts have held 
that such a special plea, with the trial court’s permission, 
may be filed after arraignment. Baker v. State, 209 Ala. 
142, 95 So. 467 ; Sheppard v. State, 257 Ala. 626, 60 So. 2d 
329. Counsel, who was appointed only three days after pe­
titioner’s arraignment, considered him sane prior to and at 
the time of tr ia l; only the affidavit of petitioner’s first cousin, 
once removed, dated May 23, 1957 and introduced in support 
of a motion for new trial, intimates that counsel, after ob­
serving petitioner’s erratic behavior at the trial, questioned 
his sanity. There is no evidence that counsel considered pe­
titioner insane prior to the time of trial.

Finally, the petition for leave to file an application for 
writ of error coram nobis contained no allegation and of­
fered no evidence that petitioner had been prejudiced or dis­
advantaged in any way by the absence of counsel at his 
arraignment.



12

CONCLUSION

For the foregoing reasons, respondent contends that the 
judgment of the Supreme Court of Alabama should be af­
firmed.

V III

Respectfully submitted,

MacDonald Q allion 
Attorney General 
State of Alabama

George D. Merits 
Assistant Attorney General 
State of Alabama

Counsel for Respondent



13

CERTIFICATE

This is to certify that I, George D. Mentz, one of the at­
torneys for respondent and a member of the Bar of the Su­
preme Court of the United States, served two copies of the 
foregoing Brief and Argument of Respondent on Orzell Bill­
ingsley, Jr., 1630 Fourth Avenue, North, Birmingham, Ala­
bama, one of the attorneys of record for petitioner, by mail­
ing them in a properly addressed envelope, with first-class 
postage prepaid, in the United States mail, and I also served 
three copies of the foregoing Brief and Argument of Respond­
ent on Tliurgood Marshall, 10 Columbus Circle, Suite 1790, 
New York 19, New York, one of the attorneys of record for 
petitioner, by mailing them in a properly addressed en­
velope, with air mail postage prepaid in the United States 
mail on th e ........ day of October, 1961.

George D. Mentz 
Assistant Attorney General 
State of Alabama 
State Capitol 
Montgomery 4, Alabama



14

APPENDIX

Code of Alabama 1940, Title 15, Section 423, reads:

§ 423. (4573) (7176) (4939) INSANITY MUST BE SPE­
CIALLY PLEADED AS A DEFENSE FOR CRIME.— 
When the defense of insanity is set up in any criminal 
prosecution it must be by special plea, interposed at the 
time of arraignment and entered of record upon the docket 
of the court, which in substance shall be, “not guilty by 
reason of insanity.” Such plea shall not preclude the usual 
plea of the general issue, which shall not, however, put in 
issue the question of the irresponsibility of the accused by 
reason of this alleged insanity, this question being triable 
only under the special plea.