Memorandum Brief of Respondents in Reply to Petitioner's Brief in Support of Motion for Summary Judgment

    iN TIIE UNITED STATES DISTRICT COURT

I'OR IflE MIDDLE DISTRICT OF' ATABA!'IA
NORTIIERI.I DIVISION

JUIIA P. WII,DER,

Peti t ioner

)
)
)
)) crvrt ACTToN
) no. 8t-fl-580-N
)
)
)

vs.

EA],ON M. LAMBERT, €t al. ,

ResPondents

uEII{0RANDIII'I BRIEF OF BESPOI{DENTS IN REPLY T0
-- y :_-_:L_=::.=fu 

n_ ffil_flT_JUDGEEFf 
_

Petitioner's flrst issue is that the indictment blas

totally defective in that lt failed to inforn her of the

nature ancl cause of the accusatlon against her'

(Petitionerrs brief, P. 4)

sufficieney of a state indictment is not a rnatter

for feileral habeas corpus reiief unless it can be shown

that the indictroent is so clefective that the convieting

court had no jurisdiction, gfalfg-h-yr--IE-telle-, 511 F'2d fr]:,''3.
court had no Jurlsclerlonr 

--ji!=.t 

v)' '- .J
i229 (f tir Cir. 198C), and that under no cireunstanees Lt'z-c-\

could a valid ccnvicticn result fron facts provable under
-rn

the ind:.ctnent. J.9.h,]sql-yj--q9.!.9.Liq. , TOa P'zd 232 (tttr J

Cir. tgeS); qAqe-I'-t.-.l1!qe:, 6e1 P'2d 1116 (Ztir Cir' J

,(
tu. r

.ru
U'Q

l)S* *)'- .

+JLf,

1 9s2).



The inttietment was clearly sufficient to confer

Jurisdiction on the state trial court to try petitioner

for a violation of Alabana Cotle 19?5, $ 17-21-1 -

Under subheadlng uA" of petitioner'g argument, she

asserts: 'rThe jury was. . . authorized to f intl petitioner

guilty under I l-l-Zl-l if she aeted tn a manner rnot

authorizecl by or...eontrary tot any slngle provision of

any one of a number of statutes not specified or even

hintetl at 1n the indictnent-" (petitionerrs brief, p'

5)

This assertion by petitioner is absolutely

incorrect. Uniler the trial eourt's charge to the Jury,

the jury was authorlzed to return guilty verd.icts only

upon proof of the following two theories as set out by

the court:

1. The State charges here that the
defendant voted nore than once and
that she reeeiveC ballots
tlesignated for registered voters,
that she marked or had these
ballots narked in the way that she
wanted then to be narked, and theY
were eventual)-Y east and eountetr
as lar for votes. Ihe charge is
that the defendant voted the
ballots and not the absentee
voters in rhose nane theY Yere
designated, anC that this a'ncuntei
io her having voted mcre than
once.

-1<
P-<

- .yvzry:
, 

o;.'-
,/ 

^ 
,t./

D

2



The State contencls that the
clefendant particlPated in the
seheme to secure absentee ballots
and to i1lega11Y or frauilentlY
cast those ballote. It is the
State's contention that on aone of
the absentee ballots that carne
into Julla Wiltler's Possession'
she narked the ballots or hacl
knowleclge that the ballote Yere
narked by someone other than the
reglsterect voter and nlthout that
voterts knoilledge or consent, that
she signetl or causetl to be signetl
or had knowletlge that the ballots
were signed bY soroeone other than
the registered voter without that
voter's knouledge or eoneent.

Sueh a ballot woulcl be i}legal to
cast a baIlot or ParticlPate tn
the schene to cast that baIlot
rith knowletlge of these facts and
roultl fa11 within the ects
prohibited bY Sectlon 17-2r-1.

(n. ,11-112)

Thus, p€titioner's argument that the jury was

2.

authorized

aeted in a

to find her guilty under I ll-Zl-t if she had

nanner "not authorized by or contrary torr any

single provision of any one of a number of statutes not

specifled ln the indictnent ls wlthout merit'

Thus, under the trial eourtts instruetions, the case

was srrbmitted to the jury on the very charges of the

ind.ictment, whieh eharges are characterizeC by the

ALabana Oour'. of Crim'ina1 Appeals as follows:



Count one made the IP"titioner]
aware that she did i11ega11Y or
fraudulently vote by voting EIore than
once by- depqsi!ifrg" more than one
balIot-las her volel in the Democratie
Pr inaryL?Efl=5ff-Efect i on of Septenb e r
26, 1978.

Count two inforned the Ipetitioner]
that she did cast iIIega1 or
fraudulent absentee ballots by voting
nore than one absentee ballot or bY
clepositing nore than one absentee
uaitot fas- heilotel in the Democratic
PrimarfRun-off ETdction of Septenber
25,1978.

Count three notified the
Ip"titloner] ttrat she dld cast illegal
;i' fraudulent absentee ballots bY

depositing with the Pickens County
Ciicult Clerk, absentee ballots which
rere frautlulent and that she knerf-fr--'

1.-
Ft.",*

-<,-- q'
*..aD,

[ilcler v. State, l{s. 0P., P' 20'

Respondents subroit the eviilence was suffieient

to find petltioner guilty under either or both theories

on '*hich the case was submitted to the iury and under any

one or all three counts of the indictment under the

standard of review raandated by Jackson v' Yirginia, 441

u.s. 1o7 ( 1 979) .

Petitioner's entire challenge to the sufficiency of

the indictment nust fal1 under (newei _v. 3g?!, 258 U-S-

442 (1g?5) (Ncting here that petitioner" has naie some

argunents about the in,lietment being insuffieient because

fraud.ule::t cond'uct is charged ani there being no



o
speciflcs or particulars of the fraudulent acts, the \l -.-,

appltcable here ln that the lndictment challenged in -gn,'fo- tL

Knewel alleged fi.ltng a "false and fraudulent Ilnsurance] =t"A

claimr" but did not state 1n particular in what manner )

the ctraim was "false or fraudulent'")'

II.

Petitionerrs second lssue ls that the Court's jury

j.nstruetions subjeeted petitloner to ex post facto

liabtlity. (pettttoner's brief, p. 24) This assertion

bypetitionerisnertttress.Ashasbeenshownin
respcndents' argurnents above under petltioner's first

issue, the case nas submitted to the iury under two

theories of guiLt under the lnd.lctnent, both of Yhlch

were clearly charged in the inoictment'

iII.

Petitionerrs third issue (petitioner's brief, p'

ZB), like her first tro, ts based orr the fa1se premise

that the trial courtrs lnstruetions authcrizeo the iury

to eonvlet unoer 5 17-23-1 tf they found petttioner had

irrfringed Lrr any Yay the statutes the court maoe

reference to in lts cral charge' Agalrt, as has been

socyrr abcve, this premise is absciutely ahd tctally

ir.ccrrect.



Fina1Iy, tt is the position of responclents that none

of the arguments matle here which are based on alleged

errors in the trial eourt's oral charge can be

entertalnecl by a habeas court because they were not

presentetl to the state trial court as provltled for and

required by Alabama procedural Iaw'

Although petltioner did challenge the suffieiency of

the indictment by a pre-tria1 notiol_(n. ,24-126), the

grounds ralsed in the habeas petition here relating to

the court's oral charge Yere not presented to the trial

court, nor have they been passecl on by the Alaba.na

appellate courts-

theproperprocedureattrialwou]-dhavebeenan

objection at the end of the court's oral eharge to the

jury, and that objection should have been that lt was

error for the trial court to instruct the iury as to the

four statutes eovered in the oral charge on grounds the

statutes Yere not incLuded or charged in the indictment,

on grountls that eharging the iury on these statutes

subjected petitioner to ex post facto liability, and on

grounds the trial eourt's oral charge allowed a guilty

verd.ict on strict 11abl1ity grounds'

/r_,
4, 4-b (- x-.-a /./ t-*c 18 '-?..

>- \ 'PJs)4
.<\ \'>z 1-'Y .D

'-a< 1,
s
-1-

U



Alaba.na 1aw ls very clear that in Order to preserve

for review alleged errors in a trial eourtrs oral charge,

a defenclant roust object, point out to the trial court the

a11eged1y erroneous portions of the charge, and ass18n

specific grounds as to why the defendant belleves there

iras error. Brazell v. State, 42, So.Zd 121 (Afa- Crln.

App. 1 982).

Failure to na.ke suffieient obJeetion to preserve an

allegeclly erroneous iury lnstruction waives the allegecl

error for purposes of appellate revlew. ElII v. state-,

409 So .2d 945 (Afa. Crin. App. 1981 ).
l{orever the obJectlon te vaivetl unless uacle before

the Jury retlres. showerg v. state, 4O7 So.2ct 169, 172

(ara. 1981 ).
The q4_1aj9leliant obJeetion_9a11a'!--!!e end of the

trial court's oral charge was:

...The Court...eharged the jury on
periury under Title 1r. t{e obJect to
ttrat portion of the court's charge'

(n. ,15)

No grounds for the objection were assigned '

sinee petitioner nade no objection suffieient to

preserve for appel)-ate revj.er any lssue as to the trial

eourt's orai charge, Petitioner fai.led to conply with

Alabana proee3ural 1aw. therefore, the notion ior

sunmary judgment is due to be deniec, and tne petition 1S



duq tO be oenled on all assertlOns c6ncernlng the trlal

courtrB Oral chargc unless petlttoner can show cause fOr

failure to obJect and actual preJudlce resultlng fron the

charge. UalnrrlSht v. Sykee, 455 U'S' 72 (1977)'

ReepectfullY subnltted'

vrtr|.l'rL.ug\J a. ulf^vv

ATTORIIEY GENERAI,

ISTANT ATTORNEY GENERAI

ASSISTANT ATTORT{EY GEISERAL

8



a.

CERTIFICATE OF SERVICE

I hereby certify that on this Z4th day of 1ebru&rX,

1984, I did eerve a copy of the foregoing on the attorney

for Petitioner, vanzetta Penn Durant, 5r9 llartha street,

llontgonery, Alabana ,5108, bY hancl tlellvery'

isststlrt ATToRNEY GENERAI

f;ffiflt-fE-f,sTN
ASSISTANT ATTORNEY GENERAT

a