Attorney Notes; Memorandum Brief of Respondents in Reply to Petitioner's Brief in Support of Motion for Summary Judgment; Bozeman v. State Court Opinion; Reply of Respondents to Petitioner's Response to This Court's Order of December 2, 1983; Petitioner's Memorandum of Law in Support of Motion for Summary Judgment

    *. -7,

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Dayna L. Cunningham



CIVIL ACTION
N0. 8r-H-579-H

vs.

EALON l,l. LAMBERI, et &1 . ,

Respondents

IN THE UNITED STATES DISTRICT COURT
FOR TEE MIDDLE DISTRICT OF AIABAMA

NORTHERN DIVISION

MAGGIE BOZEMAN,

Peti t i oner

I-IEITIORANDUI-I BRIEF 0F RESP0NDENIS IN REPIY T0

Petitioner argues her eonvlction should be set asitle

because she uas convicted untler a clefeetive indictment.

Petitioner basically claims the indictment was

rend.erecl defective by the trial court's iury
instructions, i.e., the trial eourt conmitted error in
instructing the jury as it dld. Petitioner also contenlls

the jury instructions erroneously subjeeted petitioner to

"striet 1iabi1ity."
At the end of the trlal court's charge to the iury,

tlefense counsel made no objeetion to the courtrs

instructions. (n. 208)



A proper obJection to the charge would have been to

object on the grountls that lt was error for the trial
court to instruct the Jury as lt did and to cite the

grouncls therefor which petitioner now raises ln her

habeas petition.
Under Alabama procetlural Ian, petitioner eould have

obJectetl at the end of the courtrs charge and clted as

grouncls the matters raised here.

This woultl have given the trial eourt an opportunity

to take corrective action 1f intleed the grounds were

meritorlous. And, assuning an atlverse ruling, Petitioner
woulcl have been able to present these clalms to the

Alabana appellate courts.

However, einee petitioner made no obJectlon to the

trial eourt's jury charge, the grounds raised here rf,ere

naived for purposes of tlirect appeal ln state court.

By not objecting, petitioner has by-passecl the state '- 4z\b.,
forum in which these grounds eoultl have ancl should have \/

been lltigated. Moreover, petitioner woultl have been in

a position to assert these grounds in a petition for writ

of certiorari to the U.S. Suprene Court. Knewel v. Ege.,

258 u.s. 442 (1925).

4



Alabama law ls very clear that ln ortler to preserve

for review allegecl errors in a trial court's oral charge,

a ilefentlant must object, point out to the trial court the

a1Ieged1y erroneous portions of the charge, ancl assign

specific grounds as to uhy the tlefentlant believes there

was error. Brazell v. State, 425 So.2tl 32, (Afa. Crim.

App. 1 982 ).
Failure to make suffieient objection to preserve an

jury instruction waives the allegecla11eged.1y erroneous

error for purposes

4o9 So.2d 94, (Ala.

lrloreover, the

the Jury retires.

of appellate revieu. Hill v. State,

Crim. App. 1981 ).
objectlon 1s walvecl unless

Showers v. State, 4O7 So.2d

macle before

1 59, 172

(na. 1981 ).
Since petitioner made no objection to the trial

courtrs oral charge, petitioner failed to comply vith.
Alabama procetlural 1aw on this point. Therefore, the

petition is tlue to be ttenietl on all assertions concerning

the trial court's oral charge unless petitioner can show

cause for failure to objeet and actual preiudiee

resulting from the eharge. !g!1@, 411 U.S.

72 (tgtt).



Petitioner then le left here vtth her challenge to

the sufficiency of the intlctment made in her pretrial

motion which challengetl the indictment as being vague and

overbroad. (n. 218-220)

It was only upon the language of the lndictment that

the Alabama Court of Criminal Appeals rulecl on its
sufficiency and helcl the inclietment was suffieient-

Suffieiency of a state lndictment is not a natter

for fecleral habeas corpus relief unless it can be shown

that the tndictment ls so tlefective that the convietlng

court hacl no Juriscliction. Branch v. Este11e, 611 F.2d

1229 (>tn Cir. 1980). 0r, stated another YaY, petitloner

must show that untler no circumstances could a valitl

eonviction result fron facts provable under the

indictment. {gt4q_o_g v. Estellg , 7O4 F.2d 232 (lti, Cir.

1983); Cramer v. Fahner, 683 I'.2d 1175 (Ztrr cir. 1982);

Knewel v. Egan,258 U.S. 442 (1925).

Thus, since petitioner has not shovn cause for

failure to objeet to the trial courtts instructions, and

since the inclictnent was clearly sufficient to confer

jurisdiction on the state trial court to try petitioner



for vtolatlng Alabana Code 1975, $ I7-2r-1, the notlon

for sunmary Judgment

petttlon ts due to be

to be tienl.e<l, and the

on these tsgueS.

Reepeetfully subnttted,

ls due

dented

vl.hllllv na vltnvv

ATTORNET GENERAI,

SSISTANT ATTORNEY GENERAI

ASSISTATI ATTORTXf, GENERAT



cEuIFrqtTE_q SERVICE

r hereby certify that on thie z4th day of Febru&rY,

1984, I did Eerve a copy of the foregolng on the attorney

for Petitioner, Vanzetta Penn Durant, 5r9 Martha Street'

llontgon€ry, Alabaroa ,5108, by hand delivery.

RIVARD }IELSON
ASSISTANT ATTORNEY GENERAI

SSISTANT ATTORNEY GENERAI,



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BOZEMAN v. STATE
Cltora 1661.A*,,l{,r So.2d t67

APPENDIX-Continued

APPLICATION FOR AESENTEE DALI.OT

lrr/

Ara. 167

l-14111

To

Dcrr Sir:

t sill bc uorblc to rotc rt my rctuhr polliag plrcc bccrw of my rbccncc from thc co *rr, o*-Q;!Af

@ lll", *, i'iifl^flTi 

"r::ffi"'I; 
IH :'[fil" u *"

t rlro mrtc rp,plicerion f1tb.cDtcc \.Uor for Prinrry Rmott Elccrion if nccanery. ya ! Xo E
Aoolicent'rN.,[flc \O U h I (l \ D O ; 

^

;z
Prccinct iD ?hich I lrrt rcrrd A ,
Mril b.llot to .d&c.l-

If ,ipcd by mrrl the^aenc of thc rita€ nu.r bc dgDcd hcrco!.
iltua igdrtut. Y^9 '"- .U}t<4ltz

Thir rpplicuio drry bc heodod by lhc ryplk st to lbc rstirt , or fotildcd ro hih by Uait d Surr. Mdl.

-rw\-(o E xrYllfs-fiIysr-D\.ir
Ex parte Julia P. WLDER.

(re: Julia R. Wilder

v.

State of Alabama).

8H:t7.

Supreme Court of Alabama.

July 24, 1981.

Certiorari to the Court of Criminal Ap
peals,401 So.2d 151.

BEATTY, Justice.

WRIT DENIED_NO OPINION.

TORBERT, C. J., and MADDOX, JONES
and SHORES, JJ., concur.

Massie S. BOZEMAN,

v.

STATE.

2 Div. tl6.
Court of Criminal Appeals of Alabama.

March 31, lg8l.
Rehearing Denied April 21, 1981.

Defendant was convicted in the Cirrcuit
Court, Pickens County, Clatus Junkin, J., of
voting violations, and she appealed. The
C,ourt of Criminal Appeals, DeCarlo, J., held
that the evidence was sufficient to support
the conviction.

Affirmed.
Writ denied, Ala.,40l So.Zt l?1.

l. Criminal Law e552131
In reviewing sufficiency of circumstan-

tial evidence, test to be applied is whether
jury might reasonably find that evidence
excluded every neasonable hypothesis ex-
cept that of guilt, not whether such evi-
dence excludes every rcasonable hypothesis
but gnilt, but whether jury might neason-
ably so conclude.



168 Ala.

2. Criminal Law ell44.l3(2)
On rcview, Court of Criminal Appeals

is required to consider evidence in light
most favorable to prosecution.

3. Criminal Lsw c=1144.13(4, 5)

Court of Criminal Appeals must take
evidence favorable to prosecution as true,
and accord to state all legitimate inferences
therefrom.

4. Criminal Law ea552(4)

Circumstantial evidence must be ac-
corded same weight as direct evidence when
it points to accused as guilty party.

5. Criminal l,aw e?42(l)
Truthfulness of tescimony is for triers

of fact.

6. Elections F329
In prosecution for voting violations, ev-

idence was sufficient to support conviction.

7. Jury e33(5)
In prosecution for voting violations, de-

fendant's constitutional rights were not vio-
lated when State used its peremptory
strikes to exclude all blacks from jury ve-
nirr.

Solomon S. Seay, Jr. of Gray, Seay &
Langford, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and
Thomas R. Jones, Jr., Asst. Atty. Gen., for
appellee.

DeCARLO, Judge.

The grand jury of Pickens County indict-
ed the appellant and charged her in a three-
count indictment with voting more than
once or dep,ositing morc than one absentee
ballot for the same office as her vote, or
casting illegal or fraudulent absentee bal-
lots. This is a companion case to tiltfier v.

Stare,401 So.zd 151(198f). 'r

The indictment in this case, omitting the
formal parts, reads as follows:

"The Grand Jury of said County charge
that, before the finding of this indict-
ment, Maggie S. Bozeman, whos€ name
to the Grand Jury is otherwise unknown:

4OT SOUTHERN REPORTER. 2d SERIES

..COUNT ONE

"did vote morne than once, or did deposit
more than one ballot for the same office
as her vote, or did vote illegally or fraud-
ulently, in the Democratic Primary Run-
off Election of September 26, l9?8,

..COUNT TWO

"did vote more than onoe as an absentee

voter, or did deposit more than one abeen-

tee ballot for the same office or offices as

her vote, or did cast illegal or fraudulent
absentee ballots, in the Democratic Pri-
mary Run+ff Election of September 26,

1978,

..COUNT THREE

"did cast illegal or fraudulent absentee
ballots in the Democratic Primary Run-
off Election of September 26, 1978, in
that she did deposit with the Pickens
County Cirrcuit Clerk, absentee ballots
which were fraudulent and which she

knew to be fraudulent, against the peace

and dignity of the State of Alabama."

After a two-day trial which ended on
November 2, 1979, the appellant was found
guilty as charged in the indictment and
sentenced to four years imprisonment. She
gave notice of appeal and filed a motion for
a new trial. The motion was subsequently
denied when no testimony or argument was
made on behalf of the motion.

The evidence presented at trial was sub.
stantially as follows:

Ms. Janice Tilley's testimony conceraing
absentee voting procedurcs was substantial-
ly similar to her testimony in Wr?der, supra
Ms. Tilley stated that the week preceding

the September 26, 1978 Democratic Primary
Run-off Election she gave the appellant
approximately twenty-five to thirty absen-

tee voting applications. M* Tilley t€stified
that the appellant came to the Pickens
County Circuit Clerk's office requesting the
applications on several occasions. Ms. Til-
ley specifically remembered seeing the ap
pellant on September 25th in the company

of Julia Wilder. Ms

the appellant in a

office at that time, '

ber whether appella
ballots to the office.
a number of ballol
same address, 601

west, Aliceville, Ala

During cKxis-exar
tified th8t ther.e i
applications for ah
up by the voters th

Pickens County !
testimony was subs'

testimony in Wildet

Mr. Charles Tatr
cerning his partici
the voting irregula
1978 election. In
which had been dor

box, Investigator T
nine of the bellots
Paul C. Rollins. I
tion, Mr. Tate exan
Circuit Clerk's rc<

corresponding 8pp
for the abaentee h
be the case.

During crosst-€xa
fied that the thir'l
by Mr. Rollins, hac
for the same penrc

Mr. Paul L. Roll
Tuscaloooa, tcstifir
appellant nine or
was shown several
he notarized on S
office in Tuscaloo
had not tleen sign,
was not pensonall
penons who had s

that appellent, Ju
ladiee brought thr
werc present whe
further t€stified
the appellant abo

On qres-exami
that he advis€d I

end the other tn
signing the ballot



BOZEMAN v. STATE
CltG a$ AI&Cr.ADP.,'Ol SG2d 167

Ala. 169

sit
ce

d-

of Julia Wilder. Ms. Tilley recalled seeing his presence' Mr' Rollins testified that pri-

the appellant in a ear outside the clerk's or to notarizing the ballots he received two

office at that time, but she did not remem- telephone calls pertaining to the ballots and

ber whether appellant herself returned any that one of the calls was finm the appel-

ballots to the office. Ms. Tilley noticed that lant. Mr. Rollins stated that he was paid

a numhr of ballots were mailed to the for his services and that he subsequently

same address, 601 Tenth Avenue North- went to Pickens County to find those per-

west, Aliceville, Alabama. sons who had allegedly signed the ballots'

During cross-examination, Ms' Tilley tes- He had the appellant's a'ssistance on that

tified that there is no requirement that occasion' however' he was sure he did not

applications for absentee voting be picked go to Pickens County prior to September 26'

,p Uy tfr" voter"s thems€lves. 1978'

Pickens County Sheriff Louie Coleman's Mrs' Maudine ['atham testified that she

testimony was substantially the same as his was a registered voter of Pickens County

testimony in lVilder, supra. and stated that she signed an application to

Mr. charres rate testiried basicauv con- ;:ff:tr1?""*#i"T:[ffi,tn: H:
cerning his participation in investigating testified that she never received a ballot to
the voting irregularities in the September, vote.
19?8 election. In counting the ballots
which had been double locked in the ballot Mrs' Annie B' Phillips' Mrs' Mattie o'

box, Investigator Tate observed that thirty- Gipson and Mr' Nat Dancy's testimony was

nine of the ballots had been notarized by substantially the same as their testimony in

Paul C. Rollins. As part of his investiga' ffilder' supra'

tion, Mr. Tate examined the Pickens County Mrs. Janie Richey testified that Julia Wil-

Circuit Clerk's records to verify whether der helped her to vote absentee in the Dem-

corresponding applications had Len filed ocratic Primary Run'off Election' She had

for the absentee ballots, which he found to no objection to the way Ms. Wilder marked

be the case. her ballot'

During cross-examination, Mr. Tate testi- Mrs. Fronnie B. Rice testified that she

fied thal the thirty-nine ballots, notarized voted absentee in the Democratic Primary

by Mr. Rollins, had all been marked to vote Run-off Election, and that her application

and ballot came in the mail. She statedfor the same penpn.

Mr. Paul L. Rollins, a notary publie from that she marked her ..X's', without assist.

Tuscaloosa, testified that he had known the ance and then signed her name on the bal-

appellant nine or ten years. Mr. Rollins lot' Mrs' Rice gave her ballot to Julia

was shown several of the thirty-nine ballots Wilder' She did not know Paul C' Rollins'

he notarized on Septembe. 23, t9?8 in hit Ninety-three-year-old Lou Sommerville

office in Tuscaloosa. All of these ballots testified that she was a registered votcr in

had not been signed in his presence and he Pickens County and that Julia \ililder as-

was not p""*n"tty acquaintcd with those sisted her in voting in the September 26,

Petlons who had signed. Mr. Rollins stated 19?8 Democratic Primary Run-off Election'

that appellant, JulL Wilder and two other Mrs. Sommerville stated that she placed her

tadies Lrought the balloti to his office and ballot in the box at the polls. Mrc' Som-

wene present when he no'tarized th"m. He merville insistcd that Julia wilder and her

further t€stified that he had talked with daughter wer.e the only persons who had

the appellant about notarizing the ballots. ever assisted her in voting absentee, and

On crcss+xamination, Mr. Rollins stat€d she made her own "X" mark' Mrs' Som-

that he advised the appellant, Ms. Wilde" merville did not know Paul C' Rollins'

and the other two ladies that the pemons Sophia Spann, whose absentee ballot was

rigning the ballots werc supposed to be in notarized by Paul Rollins at the appellant's

ee

n-
as

nt
ri-
t6,

3e

n-

in
1S

ts
le
:e

In

rd

rd

te

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v
13

s
l-
L

c
v
,t

d

s

e

Y



170 Ala. 40r SOUTHERN REFORTE& 2d SERTES

request, testified that she always voted in
Cochran, Alabama, and that she had never
voted in Aliceville. Ms. Spann stated that
she had never voted an absentee ballot, but
that the appellant had come to her house
and had talked to her about it. She had
known the appellant all her life. On the
occasion the appellant talked with Ms.
Spann, Ms. Spann testified that the follow-
ing conversation occurred:

"She just asked me because my husband
was sick. And she asked me did I want
her to vote for me. And I wouldn't have
had to come over to Aliceville.
"I said, 'maybe. I don't have to go to
Aliceville. I votes in Cochran.' I haven't
voted in Aliceville in my life. I votes
here. Just started to voting right in
Cochran. That's all I vote." [Em-
phasis added.l

Ms. Spann denied ever making applica-
tion for an absentee ballot, or to having
ever signed her name to one. See lVr7der,
supra, and the attached appendix.

On cross-examination, Ms. Spann testi-
fied that she knew Julia Wilder, but .,I
don't know her nothing like I do Maggie."
She denied that Julia Wilder had ever been
to her house and further denied ever having
discussed voting with her on any occasion
and said, "I don't know anything about
that."

Ms. Spann testified that the appellant
talked to her before voting time. "She
thought I had tp come to Aliceville and she
was helping me. And I told her I didn't
have to go to Aliceville, I votes in Cochran,
and I didn't need the help." Ms. Spann
next testified that when she went to Coch-
ran to vote, a voting official told her she
had already voted in Aliceville; "somebody
had voted for me over at the Alice-
ville...." I

From the record:
"Q. A question like that came up?

"4. Yes, sir. When I walked in, Mrs.
Charlene said, there's my mama. How
come you so late? . . . . So, she said,
'well, that's all right. Somebody done
votd for you over at the Aliceville,' and
she showed it to me. And she asked me

did I know that writing. I didn't know
that writing.
'Q. Now, who told you that?
"A. The lady down at Cochran, the lady,
Mrs. Charlene, Mr. Hardy Baldwin's wife.
'Q. Did she tell you how she come to
know that you had voted?

"A. It was in the box at Cochran. The
paper was in the box and he [sic] got it
and showed it to me and asked me did I
know that handwriting. I didn't know it.
That's all of it." [Emphasis added.]

Mrs. Lucille Harris' testimony was sub-
stantially the same as her testimony in WrI-
der, supra.

At the conclusion of Mrs. Harris'testimo-
ny the State rested its case and appellant's
motions to exclude were denied. The de-
fense did not present a case. Closing argu-
ments rvere had and the trial court prcperly
charged the jury as to the law, there being
no exceptions taken.

I.
Section 17-?3,-1, Code of Alabama 1975,

is constitutional. Wilder, supra.

II.
The indictment in this case, which is iden-

tical in pertinent part to the indictment in
Wilder, supra is constitutionally valid. Wil-
der, supra.

I II.
[-51 The evidence, although circum-

stantial to a large degree and confusing in
several instances, was sufficient to support
the jury's verdict. In reviewing the suffi-
ciency of circumstantial evidence the test to
be applied is "'whether the jury might rea-
sonably find that the evidence excluded ev-
ery reasonable hyp,othesis except that of
guilt; not whether such evidence excludes
every reasonable hypothesis but guilt, but
whether a jury might reasonably so con-
clude. (Citations omitted).'" Dolvin v.

Stare, 391 So.2d l3:|, l3? (A1a.1980); Cumbo
v. State, 368 So.zd 871, 874 (Ala.Cr.App.
19?8), cert. denied,368 So.2d 8?7 (Ala.19?9).

On review, this cour
the evidence in the
the prosecution. )

*.%l 1242 (Ala.Cr..
Stsre, 37 Ala.App. 4

This court must takr
to the prosecution at

State all legitimate
Johnson v. Statr-, 1

App.), cert. denied,
1979). Circumstanti
corded the same wr
when it points to tt
p8rty. Inke v. St
Cr.App.19?6). The
timony was for the
SA8ae, 335 So.tul2U

t6l Thereforc, r

cording the verdict
tion of @rnectnesa,
sufficient to suppor
convinced that the r
unjust and was n(
weight of the evidr
2&l Ala. 4L2, DS *

t?l There is no r
argument that he
were violated when
emptory strikes to
the jury venine. T
tively answered in
u.s. 202, 85 S.Ct
(1965); Thigpn v.
?r0 So.2d 666; C
So.zd 89 (Ala.Cr.Ap

We have searchr
prejudicial to app
none, thercforc, the
by the Pickens Cir

AFFIRMED.

All the Judger o

@



HANDLEY v. CITY OF MONTGOMERY
clt' a* Alr'cr'ADD' 'ol tlc2d l7l

Ala. l7l

n

t-

1-

in
rt
:i-
La

a-
v-
of
es

ut
rn-

v.

b
,p.
e).

On review, this court is required to consider

the evidence in the light most favorable to

the prcsecution. McCord v' Statc, 379

b.%J l2{:2 (Ala.Cr.App.l979); Coleman v'

Stite, g7 Ala.App. 406, 69 So'2d 481 (1954)'

This court must take the evidence favorable

to the prosecution as true, and accord to the

State all legitimate inferences therefrom'

Johnson v. Statc, 3?8 So.2d 1164 (Ala'Cr'

App.), cert. denied, 3?8 So.2d 1173 (Ala'

19?9). Circumstantial evidence must be ac-

corded the same weight as direct evidence

when it points to the accused as the guilty

party. Incke v. StaAe, 338 So'2d 488 (Ala'

Cr.App.19?6). The truthfulness of the tes'

timony was for the triers of fact' May v'

Stace, 335 *.tul ?A2 (Ala.Cr.App'1976)'

t61 Therefore, we conclude, after ac-

cording the verdict all reasonable presumP

tion of @rrectness, that the evidence was

sufficient to support the verdict' We are

convinced that the verdict was not wrong or

unjust and was not patently against the

weight of the evidence' Bridges v' Statn,

28{ Ala. 412, nS So.zd 821 (1969)'

IV'

t?l There is no merit to appellant's final
argument that her constitutional rights
were violated when the State used its per'

emptory strikes to exclude all blacks from

the jury venire. This question was defini-

tively answered in Swain v, Alabama,}80
U.S. m2, 85 s.Ct. 8?/1, lg L.Fd.zl 759

(1965); Thigpen v. Stttn,49 Ala'App' 233'

ffO So.2l 666; CarPntnr v. State, 4Ul

So.2d 89 (Ala.Cr.APP.r980).

We have searched the record for error
prejudicial to appellant and have found

none, therefor.e, the judgment of conviction
by the Pickens Circuit Court is affirmed'

AFFIRMED

All the Judges @ncur.

Ex parte Maggie BOZEMAN'

(re Meggie S. Bozcman

v.

State of Alabeme)'

8G53&

Supreme Court of Alabama'

JulY 24, 1981'

Certiorari to the Court of Criminal Ap
peals,40l So.2d 16?.

BEATTY, Justice.

WRIT DENIED_NO OPINION.

TORBERT, C. J., and MADDOX, JONES

and SHORES, JJ., concur'

Roger HANDLEY et aL

v.

CITY OF MONTGOMERY.

3 Dtv. 195.

Court of Criminal Appeals of Alabama'

March 31, 1981'

Rehearing Denied MaY 5, 1981'

Defendants werc convictcd before the

Circuit Court, Montgomery Crcunty, Joseph

D. Phelps, J., of unlawful assembly and

paradin! without permit, and they apryal

ed. Th; Court of Criminal Appeals, DeCar'

lo, J., held that: (1) article of city traffic

code requiring permit for parades 
"19- 

p*
cesEionE was valid on ita face and did not

constitute an impermiasible prior regtraint

of Fint Amendment freedoms; (2) article

was not unconstitutionally applied against

Ku Klux Klansmen arreotpd lor demon-



I.':AGGIE BOZElIAN,

Petitioner
vGlU.

EAION I,I.

CIVII ACTION
N0. er-n-574-H

'l*, /'\4/ ? {r^' 
rt.''*'/ tL,''\<-

IN THE UNITED STATES DISTRICT COURT
FOR THE ITIIDDI,E DISTRICT OF AI,ABAI'1A

NORTHERN DIVISION

IAUBERT, €t aI.

Bespondents

REPTY OF RESPONDENTS TO PETITIONER'S RESPONSE

0n Decembet 2, 198r, this Court entered an order

requiring petiti.oner to file "a brief or other document

setting out her positions on the issues in this case."

Petitioner has filed vhat she ca1ls a "response" to

the Courtrs order in whieh she merely lists what she

believes to be the elght issues raised by the petition
and in uhich she states she intends to file a notion for
sunnary judgnent as to her listed issues B, C, and D.

fn replying to this 'response' by petitioner, the

respondents are unsure as to how to proceed since

petitioner makes no argunent as to her position based on

r\\'\t\



the state trlal reeortl. Iloyever, respondente ui11

attempt to address eaeh of the issues Ileted tn the

tresponBe. n

In fssue A, as denominated 1n petitionerre

"reeponse," questions the suffieieney of the eviclence to

support petitionerrs convietion uncler ALabaua Code 1975,

$ r ?-zr-r .

Petitioner contends the only eviclenee Linking, her to

the absentee ballots in question nas that she nay have

been present when the absentee ballots were fraudulently

notarized, but that there yas no eviclence that petitioner

or anyone assoeiated with her had cast any of the 19

ballots or that any of the ballots Yere east

fraudulently.

... 
It is clear from the record of petitionerrs trial

that she participated in a scheme to east two or Eore

fraudulent ballots for a single candidate in the 197e

Democratic Primary run-off election.

Petitioner yas present with Julia Hilder when the

notary public notarized several absentee ballots and when

none of the persons vho had purportedly signed the

ballots Yas present.



She ras told by the notary that ln order for the

ballots to be 1ega11y notarizecl the personB eigning the

ballots had to be present.

Although the notary publie testified petitioner vent

u,ith him to Pickens County to assist hin 1n talking to

the persons who a1IegedIy signed the balLote, thie uas

after the ballots had already been cast on Septenber 25,

1979. ,
The ballots had been brought to the notaryrs office

by petitioner and co-defendant Julia Hilcler, and before

bringing the ballots to his office, petitloner hacl

telephoned the notary about notarizing the bal1ots.

At least two of the ballots notarized on this
occasion bore forged signatures -- that of l,uci1le Harris

and.{hat of Sophia Spann. Petitioner had talked vith }Is.

Spann about voting an absentee bal-Iot, but Ms. Spann told

her she voted at the po11s.

0n Sepgember 25, 1978, vhen co-defendant .Iulia

Wilder depcsited the 39 absentee ballots at the cireuit
clerk's offiee, petitioner aeeompanied Julia Uilder to
the courthouse; and the evidence Yas clear Julia Wilder

caused at least two forged ballots to be east as her

choiee for a single candidate.



tt" 
''

Thus, there yaB ampLe eviilence fron yhleh the Jury
could reagonably eonclude that petltioner partlelpated 1n

a eehene vlth Julia wllder to cast at least two forgedt

absentee ballots for a single office in the run-off
e lect i on.

Under Alabama

and co-eonspirators

indietetl and tried
$ t r-9-1 .

1aw, aecompllces, aiders

in the comnission of a

as prineipals. Alabama

and abettors,

felony, are

Cocle 1975,

The evidence then clearly supporte petitionerrs
convietion under Count Tw ndi

Under f ssue g( t ) , BS denomirrated in petitioner's
"response," petitioner complains the indictment was

eonst:'uctively amended by the trial eourt's jury
inst{uctions which ineluded instruetions pertaining to

four other s'r,atutes than the one under vhich petitioner
was i nC i eted .

No objection whatsoever uas nade at trial to the

trial eourtrB oral charge. lhus, Do issue concerning

constructive amendnent or erroneous jury instructions
coul-d have been raised in the Alabana Court of Criminal

Appeals. Brazell v. State, 421 So. Zd,321 (Afa. Crin.

App. 1982). And this procedural dlefault on this issue

forecloses consideration of these clains on the nerits

l f:-'b:.€
&

1n



a federal habeas proeeecling.

u.s. 72 (rg??).

I{ainwrigLt y. Sykes, 4r,

As to fssue B(2) es denorninated in petitionerrs

"response," respondents defer to the reasoning antl

authority citecl by the Court of Crininal Appeals that
indictnent was constitutionally adequate to appriee

petitioner of the nature of the charges agalnst her.

Issue C -- because no objection to the trlal pourtrs

oral eharge was rnacle at trial, the merits of petitioner I s

claim 1s forcloeed in a federal habeas proeeecllng.

Brazell v. State, supra; Wainuright v. Sykes, Bupra.

fssue D in the Iresponse' is another conplaint about

the trial courtr6 instruetions i.e., that the trial
court's instructions ancunted to presenting I 17-21-1 and

$ th5-115 to the jury as strict liability offenses.

Again, no such objeetion was raised to the trial courtts

instruction by petitioner. Eenee, petitioner may not

raise the matter noh'in a federal habeas proeeeding.

3raze11 v. State, aupra; Uainyright v. Sykes, Bupra.

Issue E in the Iresponse" is that petitioner uas

convieted for her participation in eonduet protected by

the Voting Rights Aets, and protected by the First,
Iourteenth, and Fifteenth Anendments. Respondents do not

5



believe these laus protect a pereon rho votee twiee tn
the 6ame eleetion for the sg'ne off ice ln violatlon of
state 1-av by castlng forged absentee ballote purporting

to be the absentee ballots of registered voters.
In Issue F, petitloner contends that Coile $ 17_2r_1

is unconstitutionally vague and overbroad on lts face in
that it does not provide fair notice of the concluet

prohibited. ,
It is well established that vagueness cha1lenges to

statutes vhieh clo not involve First Amendnent freedons

must be exarained in the light of the faets of the case at

hand. United States v. Mazurie, 419 U.S. 544 (tgZf).
Although petitioner makes some assertions about her

activities in a11eged1y aiding elderly blacks to vote

being within the purview of Iirst Anendroent protections,

it is cLear the statute under which she yas convicted

does not reaeh such aetivities. The statute prohibits
easting more than one baIlot for a single office in a

given election. f'urthermore, the statute clearly gives

notice that yhat petitioner did uas prohibited under the

particular facts proved at trial she eaused at least
two forged ballots to be cast for her choice for U.S.

Senate demceratlc candidate in the run-off election.



*tot s 2)
ffi q01 S7d

lb+ (nb^bCI^&a 5 0. \
l 5 l 

,-\uAl)uu ruLtr.- J \-\ )

IN THE UNITED STATES DISTRICT COURT

E'OR THE MIDDLE DISTRICT OF ALABA!44

II{ONTGOT.TERY DIVIS ION

-x

MAGGIE S. BOZEMAN, '
Petitioner, i Civil Action No. 83-H-579-N

- against :

EALON M. LAMBERT, JACK C. LUFKIN AND :
JOHN T. PORTER IN THETR OFFICAL
CAPACITIES AS MEMBERS OF THE ALABAMA 3

BOARD OF PARDONS AND PAROtES, AND
TED BUTLER, A PROBATION AND PAROLE 3

OFFICER, EMPLOYED BY THE ATABAI{A
BOARD OF PARDONS AND PAROLES, 3

Respondents. :

:
--x

PETTTIONER I S I{EMORANDU!{ OF LAW
IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

I



TABIE OF CONTENTS

PRELIIIIfNARY STATEMENT ... .. .. .. o. . . ... . .. . ' "

I. SU}IMARY JUDGMENT IS AN APPROPRIATE
PROCEDURE ......... " o " " " " ""' o " ""'

II. THE EVIDENCE WAS INSUFFICIENT TO CONVICT ..

A. The Elements of the Offense ...... o. '

B. The Evidencg at Trial .. o........... o '

C. The Jackson v. Virginia Standard "' "

III. THE INDICTMENT WAS FATALLY DEFECTIVE ......

A. The Indictrnent Failed to Provide Fair
Notice of ALI of the Charges on Which
to the JurY Was Permitted to Return
a Verdict of Guilt -. ....... . o. o. .. ' " 1 I

B. The Indictment Failed to Include
Sufficient Allegations on the Charges
of Fraud ............"..""""""' 28

( 1 ) The factual allegations in each
Count were insufficient ......... 29

(2) Necessary elements of the crime
were not alleged ....... ......... 34

IV. PETITIONER WAS SUBJECTED TO EX POST FACTO
TIABIITITY............."""""" 36

V. PETITIONER WAS CONVICTED ON STRICT
LTABILITY GROUNDS ............... -. o o...... 41

Page

1

3

4

5

6

't3

17

1-



\

PRELIMINARY STATEMENT

petitioner Maggie s. Bozeman was convicted on a three

count indictment of a single undifferentiated violation of

Alabama Code S l7-23-1 (1975) and sentenced to a perioo of four

years in the penitentiary. She is currently on parole in the

custody of respondent members of the State Board of Pardons and'

Parole. The judgment was appealed to the Court of Crininal

Appeals of Alabama, which affirmed the conviction on March 3'l ,

1981, Bozeman v. State, 401 So.2d 167. The Court of Criminal

Appeals denied a motion for rehearing of the appeal on April

21, 1981. On July 24, 1981 the Supreme Court of Alabama

denied a petition for writ of certiorari to the Court of

Criminal Appeals. 40l So.2d 171. The Supreme Court of the

United States denied a Petition for writ of certiorari to the

Court of Criminal Appeals on November 16, 1981. 454 U.S.

r058.

The instant federal habeas corpus proceeding was initiated

by the filing of a Petition for a Writ of Habeas Corpus (herein-

after nPetition") on June 8, 1983. This memorandum of law is

submitted in support of petitioner's motion for summary judgment

on four issues raised by her Petition:

1. Thatr €ls alleged in paragraph 16 of the Petition, the

evidence offered at trial was insufficient to prove her guilty

beyond a reasonable doubt in violation of her Due Process rights

as construed in Jackson v. yilg-inia, 443 U.S. 307 (1979).



2. Thatr ds alleged in paragraPhs 19-21 of the Petition,

the indictment, charging pet,itioner with violating S 17-23-1

rras insufficient to inform petitioner of the nature and cause

of the accusation against her, as required by the Sixth and

Fourteenth Amendments .

3. Thatr ds alleged in paragraph 24 of the Petition,

the instructions to the jury impermissibly broadened S 17-23-1,

so as to create ex post facto liability in violation of the

Due Process Clause of the Fourteenth Amendment.

4. Thatr ds alleged in paragraph 25 of the Petition, the

instructions perrnitted petitioner to be convicted on the basis

of strict liability in violation of the Due Process Clause of

the Fourteenth Amendment.

2-



SUMMARY JUDGUENT IS AN APPROPRTATE PROCEDURE FOR
ADJUDICATING SOME OE PETITTONERIS CLAIMS

RuIe 11 of the Rules Governing Section 2254 Cases in the

United States District Courts provides that nIt]he Federal Rules

of Civil Procedure, to the extent that they are not inconsistent

with these rules, may be applied, when appropriate, to petitions

filed under these rules.n The Supreme Court of the United States

has specifically held that Fed.R.Civ.P. 56, the rule providing for

summary judgment, is applicable to federal habeas corPus proceed-

ings. EfggEfgggg v. Allison, 431 U.S. 53, 80-81 (L977)i see

also Wright, Procedure for llqbeas Corpus, 77 F.R.D. 227 | 228

(1e78).

There can be no genuine issue as to any material fact relat-

ing to petitioner's claims which are the subject of this Motion

for Summary ,Iudgment. The only facts involved in those claims

are the evidence submitted to the jury, the indictnent and the

instructions to the jury. Those facts are reflected in the cer-

tified transcript of the trial proceedingsr submitted on Septem-

ber 2L, 1983 by respondents as Exhibit "I.n Accordingly, peti-

tioner's claims as set forth in paragraphs L6, L9-21, 24 and 25

of her Petition and as briefed belowr Iniy be decided soIeIy as

questions of law and are appropriate for adjudication by
1/

summary j udgment.-

7/ If this Court is unable to determine that petitioner should
prevail as a matter of law on the clairrrs in Paragraphs L6, L9-21 |
24 and 25 of her Petition, petitioner does not waive her right
to present additional evidence on these and other claims. Peti-
tioner is simply asserting that on the basis of the pleadings
and the present state of the record, she is entitled to prevail
as a matter of law on Ehe clalms briefed herein.

3-



rI

PETITIONERIS CONSTITUTIONAL RTGTITS WERE VIOLATED
IN THAT THE EVIDENCE WAS INSUFFICIENT TO PROVE
EACH ELEMENT OF THE OFFENSE CHARGED

Based on the evidence offered at trialr rlo rational jury

could have found that each of the elements of the offense

charged was proved beyond a reasonable doubt. Petitioner's

conviction therefore violated the Due Process Clause of the

Fourteenth Amendment as construed in Jac@, 443

u.s. 307 ( 1979).

Petitioner's conduct during the Democratic Primary Run-off

Election of September 26, 1978 (hereinafter nrun-off") as estab-

lished by the evidence, considered in the light most favorable
2/

to the prosecutionr w6S neither shown to be fraudulent nor in
violation of each of the elenents of Ala. Code 517-23-1 (1975),

the only statute charged in the indictment. To demonstrate this
contention, petitioner wilI first set forth the elements of

Z/ Under Jackson v. Virqinia the evidence of record must be
reviewed "in the light most favorable to the prosecutionr' Id.
at 319. This process requires the federal habeas court to
draw 'reasonable inferences from basic facts to ultimate facts"
in a manner favorable to the prosecution. Id. It also
requires that when the evidence establishesThistorical facts
that support conflicting inferences [the federal habeas
courtl must presume -- even if it does not affirmatively appear
on the record -- that the trier of fact resolved any such
conflicts in favor of the prosecution.' Id. at 326. Eurther-
more, in ruling on the sufiiciency of theTvidence "a11 of the
evidence is to be considered.n Ia. at 319 (emphasis-EEFEd-f.
T-Ee evfrIence must be assessed inTigfrt of the elements oi
the crime charged, and the federal habeas judge must then
determine whether any rational jury, properly instructed, could
have found petitioner guilty beyond a reasonable doubt of each
element of the crime charged. Id. at 317-319.

-4



S 17-23-1, second she will summarize the evidence presented at

trialr and third she will apply such evidence in accordance with

Jackson to show that no reasonable jury could have convicted

her beyond a reasonable doubt of violating S 17-23-1.

A. The Elements of the Offense

Section L7-23-L provides:

Any person who votes more than once at any election held
in-this stater oE deposits more than one ballot for the
same office as his vote at such election, or knowingly
attempts to 6tE-wtr6-ne is not entitled to do so, or is
guilty of any kind of illegal or fraudulent voting, must,
on conviction, be imprisoned in the penitentiary for not
less than two nor moie than five years, dt the discretion
of the jury. (Emphasis added. )

The elements of the offense against petitioner are that she

ott

L7-23-L I

employed fraud to vote more than one ballot as her vote,

with the same menq rea required for culpability under S

aided and abetted one or more accomplices to vote more than one

ballot as their vote.

Although the statute on its face includes broad and open-

ended provisionsr and fails to specify in each of its provisions

a level of mens rea which must be proven in order to convict,

some clarification in the terms of the statute has been provided

by the Supreme Court of A}abama. In Wilson v. State, 52 AIa.

299 (1875), the Court held that "[t]he offense denounced by the

statute ... is voting more than oncern E. at 303. According to

Wilsonr then, all of the provisions of the statute including

the prohibit,ion against 'any kind of i1Iegal or fraudulent voting"

in fact state just one broad prohibition against the casting of

more than one vote by an individual at a single election.

5-



In Wilson the Court also stateo that public exposure of

otherwise secret ballots is permitted only when necessary to pre-
3/

vent frauOi=' aS a result, fraud is a necessary element of the

offense in a prosecution under S 17-23-1 when the Staters evi-

dence is predicated upon the opening of ballots. Id. Since the

State in the present case intro<iuced 39 ballots into evidence,

Tr.41, and inspected numerous other ballots as part of its inves-

tigation, Tr. 31-33, it was required at minimum to prove fraud on
4/

petitionerts part in order to convict her under S 17-23-1.-

B. The Evidence at Trial

The three count indictrnent filed against petitioner charged

that she violated S 17-23-1 through her alleged voting in the

1/ "[I]t is only when.it may be_necessary for the prevention
oi fraua, or the -induction inlo office of one not teally
elected by qualified voters, that an inspection of the ballot
can be had.'t Wilson v. State, 52 Ala. at 303.

lt Analogously, proof of crininal intent is required under
Sther elabima s-tatutes which prescribe penalties for voting
abuse. In Associateo In<iustdes of Alabqma. Inc. v. StPte, :11
So.2d 87g ( ere-Eilarged
with violating A1a. Code S 17-22-15 (1975), the Corrupt
Practices Act, which like S '17-23-'l is without an explicit
intent element. lhe Court construed the Act to require proof
of willful misconduct as a Prerequisite for liability. See

also Ala. Code S 17-l o-17 'lgaz jupp. ) (penalizing wittful
lEratlon of an absentee ballot so that it does not reflect
the voter's choice); Ala. Code S 17-4-139 (1982 Supp.) (penaliz-
ing one who knowingly registers to vote in a manner contrary to
f ai); A1a. Code t 7--A-a1- ( 1975) (penal LzLng willfuI deception
of voters by voting officials Providing assistance in baIlot
preparationl . The Alabama Court of Criminal Appeals in i'[ilder
;. state, 401 So.2d I51, 159-150, (Ala- Crim. APP.lr.cgr!'
aenleiliOf So.2d L67 (AIa, 1981) , cgr!. denied , 454 U.s. 1057
lJ$!lI; aiscussing the intent elemeiffi 5-7173-1 stated that
i[t]f," words 'i1l6ga1 or fraudule1t', as used in tS 17-23-11
aie merely clescriptive of the intent necessary fo! the commis-
sion of the offenie." Wilder v. Stater guPE&7 401 So.2d at
159-160. This specif icEffin--of ifEgaf ffint as an alternative
to fraudulent inlent, although it has never been sanctioned by
the Alabama Suprerne Court, is consistent with requiring a high
leve} of mens rea -- i.e., the specific intent to commit an
rllegality - for conviCtron under S 17-23-1.

5-



run-off. At trial the prosecution introduced 39 absentee

ballots into evidence, TE. 41, and clairned that petitioner had

participated in the voting of those ballots in violation of S

L7-23-1. It was undisputed that each ballot had been cast in the

run-off, and purported to be the vote of a different black

elderly resident of Pickens County.

No evidence was presented that petitioner had cast or

participated in the casting, the filling out or the procurement

of any.of the thirty-nine absentee ballots. Indeed there is

nothing in the record to indicate who cast those ballots , Ir.

21. The transcript is also silent on whether petitioner voted

even once in any manner in the run-off.

The prosecution hinged its case on evidence which showed

that petitioner may have played a minor role in the notarizing

of the 39 absentee ballots, and contended that petitioner's role

in the notarizing was sufficient evidence to warrant her

conviction under S 17-23-1 | because the voters did not aPpear

before the notary. Tr. 195-197i cf. Tr. 90, 105-106. District

Attorney Johnston, in his resPonse to petitionerrs motion for a

directed verdict made at the close of the State's case, claimed

that the thirty-nine absentee ballots 'were not properly notar-

ized, and in thaL sense, they were fraudulent.' Tr- 196. Then

he stated that'rthe act of the Defendant in arranging the confer-

ence Iat which the ballots were notarized] and in participating

in the presentation of the ballots to lthe notary] to be

notarized was fraud.n Tr. 196.

7-



The prosecution ca1led only nine of the thirty-nine
absentee voters to testify. Each of these witnesses h'as

elderly, of poor memory, illiterate or semiliterater dnd

lacking in even a rudimentary knowledge of voting or notarizing

procedures. Their testirtony aS a result was almost uniformly

confusing and conflicting and often fariored both the prosecution

and the defense depending on which was examining the witness.

Nevertheless, insofar as any synthesis can be made of the

individual testimony, it will be construed in the light most

favorable to'the prosecution. Three of the nine voters, lrls'

Sophia Spann (Tr. 179) | Ms. Lucille Harris (Tr. 189), and I'!s'

Maudine Latham (Tr. 91-93), testified to never having seen the

absentee ballot introcluceO into evidence as their vote' MS'

Anne Billups (Tr. 97-98), lts. ilattie Gipson (Tr. 110) ' Ms.

Janie Richie (Tr. 127') , and Ms. Fronnie Rice (Tr. 136-137, 1481

151) each remembereo voting by absentee ballot in the run-off'

Neither i{r. Nat Dancy nor I'ls. Lou Sommerville provide<i any

coherent testimony whatever on the way in which they voted in

the run-off.
It is uncontested that only two of these voters, lts' Sophia

Spann and Ms. Lou Sommerville, gave evidence of any contact with

petitioner regarding absentee voting. (Prosecution'S closing

argument at 26, filed with this court, Nov. 30' 1983). No

connection was drawn even by these voters between petitioner and

any of the absentee ballots cast in the run-off'

8-



Ms. Spann testified that petitioner had contacted her on

one occasion about absentee voting in general. Tr. 180, 184. But

she was unclear as to what was discussed on that occasi.on. Twice

Ms. Spann t,estified that Petitioner spoke to her at a time when

no election was being held, and that petitioner asked her whether

she would be interested in voting by absentee ballot in a future

election. Tr. 180, 184. But at another point in her testimony

!1s. Spann stated that petitioner visited to ask Ms. Spann if she

had voted in an election which had recently taken Place. Tr

182. Regardless of which version is true, and despite Ms.

Spannrs uncertain memory which makes an accurate reconstruction of

their meeting lmpossible, it is plain that her testimony in no

way linked petitioner to the absentee ballot voted in t'ls.

Spannrs name in the run-off at issue in the indictment. As the

evidence related above shows, P€titionerrs contact with Ms.

Spann began and ended with mere discussion between the two

life-long friends, Tr. 179-180, pertaining generally to voting.

The only evidence adduced from lls. sommerville which

connected petitioner with Ms. Sommervillers absentee voting

was introduced by the prosecutorrs reading to the

jury notes purporting to be the transcript of an out-of-court

interrogation of Ms. Sommerville conducted without an attorney

present for either the witness or petitioner.I/ ,."aifying

2/ This and similar transcripts were never shown to petitioner,
End were not taken pursuant to established Alabama procedures
for pre-trial depositions. They were allowed to go before the
jury-as substantlve evidence in violation of petitioner's

9-



in person, Us. SommerviLle vehemently challenged the veracity

of the out-of-court statements, and steadfastly denied that

petitioner was involved in any way with her voting activities.

Tr. 161r 169r 173, 174t 175. According to the out-of-court

statements petitioner aided lls. Sommerville to fiLl out an

application for an absentee ballot in order that ils. Sommerville

could vote by absentee baIIot in the run-off, Tt.161t 159.

The prosecution also informed the jury through the out-of-

court statements that petitioner aided Ms. Sommerville in fill-

ing out an actual absentee balIot, Tr. 173-174. But according

to that part of lts. Sommerville's out-of-court testimony, as

read by the prosecution, she instructed petitioner in filling

out the absentee ballot to mark votes for one Reverend Porter

and Pickens County Sheriff Louie Coleman, TE. 174' Neither of

these tr{o men were candidates in the run-off; both were candi-

dates in the regular primary which had taken place on september

5, 1978. This fact was established for the jury during the

cross-examination of Ms. Sommerville, Tr. 176-177. Therefore,

the absentee ballot described in the out-of-court statement as

having been prepared with petitioner's help could not have been

the absentee ba11ot filed in Ms. Sommerville's name in the

1/ continued

constitutional rights as alleged in paragraph 26 of the Petition.
Since the issue piesented by paragrapn 26 requires an evidentiary
hearing and is therefore not encomPasssed within the present
motion for sumlnary judgmentr w€ asiume for present purposes th9
aamissioility of ns. Somerville's out-of-court st,atements. only
should the piesent motion fail would it be necessary for the
court to reach paragraph 26, and then to reconsider petitioner's
Jacksoq v. lrifgiqt_A-c:-lim with the offending evioence excluded.
See-note t, qgpf.e.

10



run-off. In any event, all of the evidence adduced from the

statements, taken in the light most favorable to the prosecution,

showed no more t,han that petitioner aided Ms. Sommerville to

engage in 1awful voting activities with the latterrs knowledge

and consent.

The only manner in which the prosecution drew even the

most attenuated connection between Petitioner and the 39

absentee ballots introduced by the State at trial was through

the tbstimony of Mr. PauI Rollins, a notary Public from

Tuscaloosa. Mr. Rollins testified that he notarized the

thirty-nine ballots in his office in Tuscaloosa without the

voters being present. Tr. 56-64. Mr. Rollins testified that

petitioner, with three or four other women, was Present in the

room when he was notarizing the ballots. Tr. 57. But Mr.

Rollins denied that Petitioner Personally requested him to

notarize the baltots. Tr. 59, 60, 62, 64. He also stated that

he had no memory of Petitioner rePresenting to him that the

signatures on the ballots were genuine. Tr. 73-74. A11 the

prosecution could elicit from Mr. Rollins was that petitioner

and the other women Present at the notarizing $rere "together'"

Tr. 50-61, 62, 64, 71. The prosecution thus failed to present

any evi<ience that petitioner had done anything more than to be

present when l,tr. Rollins notarized the absentee ballots. No

evidence rrras presented to contradict lr{r. Rollins' unequivocal

answers denying actual involvement by petitioner in his notariz-

ing of the ballots in the voters I absence.

11



The prosecution used an out-of-court statement attributed

to Mr. RoIl inr[/ to introduce evidence that petitioner had

telephoned ltr. Rollins to request that he notarize the absentee

ballots in question, Tr. 65-55. Mr. Rollins in his in-court

testimony could not remember whether petitioner had made any

such request. Tr . s7, 64, 65-66, 76-77.!/ ,o*"ver, even

considered in the light most favorable to the state, the

evidence on the Eelephone call establishes nothing beyond a

mere request by pet,itioner for Mr. Rollins' notary services.

It does not establish that petitioner was responsible for

suggest,ing or arranging the time, place, or details of the

notarization, nor that petitioner played any part ln the

decision that the notarizing take place in !1r. Rollinsr office

vrithout the voters present. Mr. Johnston'S contention that

petitioner 'arranged the conferencen at which the ballots were

notarized, Tr. 196, is simply not supported by the evidence'

Nor is his argument that Petitioner "participat led] " in the

notarizing, .!1]., Lf this means anything more than that peti-

tioner was present while the ballots were notarized' fn short,

9/ri
AS
as
pr

This statement was allowed to go before the jury as substan-
ve evidence in violation of petitioner's constitutional rights
atfegea in paragraph 26 of Lhe petition. We deal with it here
we hive dealt with-t'ls. Somerville's out-of-court statement

esenting similar issues. See note 5 supra'

Z/ He testified in person that he received two telephone
6alls prior to his noiarizing the ballols. Tr. 76. IIe stated
that ti:e first such call was from petitioner but could remember
noitring of the substance of that conversation except that it
'pertaintedl to ballots.o Tr. 76-77. The second telephone
c6nversaiion, he recalled, centered around the same subject,
but he could neither remember the identity of the calIer nor go
into any further detail on the substance of the conversation.
rd.

12



t,he evidence attained from Mr. Ro1lins, when combined with all

the record evidence, remains wholly insufficient under Jackson.

The only other evidence which tied petitioner to even a

general effort to bring out the black vote among the elderly in

Pickens County was given by Janice Tilleyr ill employee in the

circuit clerk's office, who testified that petitioner picked up

"Ia]pproxinately 25 to 30 applications" for absentee ballots

during the week preceding the run-off. Tr. 18. This testimony

about. blank apPlication forms was never tied to any of the 39
8/

absentee ballots allegedIy voted in violation of S 17-23-1.-

Nor did the prosecution contend that there was anything illegal

about petitionerrs conduct in picking up blank application

forms. (Prosecution's closing argument at 3, filed with Court

Nov. 30, 1983).

The Evidence was Insufficient to Convict under Jacksonc.

The testimony of the voters

no evidence of culpability within

and Ms. Ti11ey provides

the elements of S 17-23-1.

9_/ Contrary to Respondent I s contentions in their January 1 0,
Tgga Replyr Ilo witness testified that any of the 39 absentee
ballots rdere cast by petitioner or by anyone known to petit,ioner.
In factr Do evidence was presented that anyone physically
deposited the ballots in the circuit clerkrs offi.ce. Ms. Ti1ley
teitified t.hat she saw petitioner in a car on September 25, the
day before the run-off election, but she testified that she did
noi remember petitioner bringing in any ballots. Tr. 20-21.
Ms. Ti11ey testified that petitioner did not come into her
office that day. Id. A motion to strike Ms. Til1ey's testi-
mony, that while petitioner was in the car, another Person,
Julia Wilderr hlEls in her off ice, was sustained. Id. Even with
the stricken statement, there was no testimony that Julia
Wilder or anyone else possessed or deposited any ballots in the
circuit clerkrs office.

13



',o-<,, - / <11*

between peririoner and the absentee ballots aIlegedly voted i.*e1o 7*l,/betweenpetitionerandtheabsenteeba11otsa1}eged}yvoteclLn"no<
fr^*

violation of S 17-23-1. Considering just such testimony, Peti- '%:L"Z
tionerf s conviction would faII quite clearly under the no-eviden;AA-,,-,

9/ /to a
rule of Thompson v. touisville, 369 U.S. 199 ( 1960).:' Even 'n -<o 

4)
under the no-evidence rule the record must contain at least a 

'a'<*9
€

modicum of relevant evidence tying petitioner to activities ?;

which could be found to violate each element of S 17-23-1, or

t,he conviction cannot stand. See rleqfEeq v. Virginia, g1L6,

413 U.S. at 370; Vachon v. New Hampshiret 414 U.S. 478 (1974).

The prosecutionts entire case must therefore rest on the

testimony of Mr. Rollins. For his testimony to provide the

the

notarizing and her telephone call to Mr. Rollins as evidence

that she was acting with the intent of committing fraud as Part

of a scheme to enable her or an accomplice to vote more than one

ballot as their vote. Dubious at best under the Thompson rule,

such evidence is woefully insufficient under Jackson to convince

a rational trier of fact beyond a reasonable doubt that petitioner

violated each element of S 17-23-1.

2/ Thomps.on held it to be a violation of due Process totpuni$-E-fran without evidence of his guiIt." 369 U.S. at 205.
tn Jackson v.JLEginig, 443 U.S. 307 (1979), the Supreme Court
hef@ test was insufficient to protect the due
process rightsEE-E-aUeas petitioners, and therefore established
the tougher Jackson Standard. ff a conviction fal]s under
Thompson, a fortfori it falls under Jackson.

+

requisite evidence of culpability, it must be possible for

rational trier of fact to view petitionerrs mere presence at

14



Jackson , of course, gives the prosecution the benefit of

all reasonable inferences that can be drawn from basic facts t,o

ultimate facts. Jackson v. virginia, supra, 443 U.S. at 319.

Let us do that here. The only relevant basic facts established

by the evidence hlere those concerning Petitionerrs telephone

call to Mr. Rollins, her presence at the notarizLng, and the

fact that such notari zLng occurred outside of the presence of

the voters. petitioner's conviction cannot sLand unless it is

reasonable to infer from these basic facts that ( 1 ) the notatlz-

ing was part of a scheme, in which prosecution witness Rollins

participated, to employ fraud to vote more than once, and (2)

that petitioner knowingly, with intent to employ fraud in order

to aid others to vote more than once, participated in such

a scheme through her involvement in the notarizLng. Petitioner

contends that such inferences are manifestly unreasonable'

In Cosby v._Jongsr 682 F.2d 1373 (11th Cir. 1982), it was

held that the process of inferring ultimate facts from eviden-

tiary facts reaches a degree of attenuation which falls short

of constitutional sufficiency under {qclgqq "at least when the

undisputed facts give equal support to inconsistent inferences.'

Id. at 1383 n.21. Even if the evidence gives "equa] or nearly

equal circurnstantial support to a theory of guilt and a theory

of innocence of the crime charged, a reasonable jury must

necessarily entertain a reasonable doubtr" and under Jacksqq

the evidence must be deemed insufficient. Id. at 1383. In

petitioner's case, if anything, the circumstantial suPport

given by the evidence to theories of innocence far outweighs

15



10-/
that given to the theorY of 9ui1t.

petitioner's indivldual conduct as revealed by the evidence

adduced from Mr. Rollins was not on its face indicative or even

suggestive of an intent to use fraud in order to vote more than

once. Nor was any of petitioner's conduct as revealed by all

the evidence suggestive in the slightest of culpable behavior.

With no evidence providing reasonable inferential support, the

theory of petitioner's guilt is thus left as a bare theory --

t,o hinge on the purely hypothetical view that petitioner might

have carried out her minor participation in the notarizing with

culpable intent,, which itself is premised on an equally unsupported

hypotheses that the notarizing was a part of a scherne whose end

result was that some Person, unnamed and unknown through the

evidence presented at tria1, might have voted more than once in

violation of S 17-23-I.

10/ that some women involved in the effort to aid elderly blacks
6 vote had the absentee ballots notarized outside of the presence
of the voters is not in itself suggestive of the criminal intent to
cause any voter to vote more than once. Indeed, given the logis-
tics of tfris effort as established by E\F*.Vl{ence at trial and
the fact that there were no black notariii{fin*Pickens County, in
order to have had each ballot notarized in'the presence of the
voter as the voter marked t,he ballot, the women would clearly have
needed a notary at their continual service, ready to travel
throughout pickens County. Thus the action of the women in having
the Uiltots notarized in-Tuscaloosa was completely consistent with
a good faith, constitutionally protected, effort to aid elderly
blicks to vote. fn addition, it is significant that the Alabama
legislature subsequently abolished any requirement that absentee
ballots be sworn to before a notary, S 17-10-6 and S 17-20-7
(Acts 1980, llo. 80-732t P. 1478, SS 3 and 4.)

15



It is impermissible and unreasonable to use such weak and

inconclusive factual suPPort as a "base uPon which to pile

inference on top of inference to reach beyond reasonable doubt

to the ultimate conclusion.o Hollowav v. McElrovt 632 F.2d

605, 641 ( 5th Cir. 1980), cert. @, 451 U.S. 1028 ( l98l ).

Nor can inferences be based on nmere conject,ure and suspicion"

and still be reasonable. United States v. .Fitzhanis, 533 F'2d

416t 423 (5th Cir. 1980)(applying Jackson). After considering

aII of the evidence ad<iuced at trial in the light most favorable

to the prosecution, a reasonable jury would perforce harbor a

reasonable doubt as to whether petitioner had violated all the

necessary elements of s 17-23-1. Petitioner's conviction was

therefore obtained in violation of her rights under the Due

Process Clause of the Fourteenth Anendment'

III

PETITIONERIS INDICTMENI WAS FATALLY DEFECTIVE
INTHATITFAILEDToINFoRMHERoFTHENATURE
AND CAUSE OF THE ACCUSATION AGAINST IIER

The indictment filed against petitioner failed in numerous

respectsr ES alleged in paragraphs L7-2L of the Petition, to

provide the leve1 of notice required by the sixth Amendrnentrs

guarantee that in all criminal cases the accused shalI receive

"notice of the nature and cause of the accusation" against her.

Each of these failures, standing alone' amounts to a denial of

constitutionally required notice, while together they add up to

a stunningly harsh and egregious denial of noticer EI Eight which

17



the Supreme Court has deemed nthe first
recognized requirement of due process.n

As

statutes

provided

that the

ing that

i1 legaI

and most

Smith v.
universally
OrGradyr 3ll

333 U.S. 196,U.S. 329, 334 (1941); see also CoIe v. Arkansas,

201 (1948).

As alleged in paragraph 19 of the Petition, a number of

charges were subnitted to Ehe jury for which the indictment

failed to provide any notice. This failure constituted a denial

of the right to notice of each such charge and the offenses

contained therein. See subsection (A) below. As alleged in

paragraphs 20 and 2L of the Petition, the charges of fraud in

the indictment were deficient in two respects. They failed to

make constitutionally adequate factual allegations of such

fraud, and they failed to charge each of the elements of such

fraud in a manner sufficient to meet constitutional notice

requirements. See subsection (B) below.

P-e-t-i-t-1o-qe-r-'-s- iq4.tq.Uqe-qt--w-qq.-!gt-11}v defective in that'-!t'

lAf-te-Qje-PEqY.f.qe. -!qtr- -qo-t-lg.q.-qf-e11 of q1q-eb1r-g.e.F-_9.q-q!rch.

h.e.r--iqff-E€=pe.ryitteo to return a veri.iq!-q!-gq.t1-!.

A.

is set forth in paragraph 19 of the Petition, various

and theories of liability as to which the indictment

no notice whatsoever were incorporated into the charges

jury was instructed to consider as the basis for a find-

petitioner had violated S 17-23-1 by "any kind of

The indictment filed against petitioner

18

... voting. "



is set forth in paragraph 18 of the Petition and at Tr. 2'11 |

Exhibit 'In of Respondentts Response to Motion to Furnish

Transcript. In each of its three countsr the indictment ostensi-

bly tracked various provisions of S 17-23-1. It alleged disjunc-

tively with other charges in Count I that petitioner had "vot [ed]

illegaIIy or fraudulentlyr" and in Counts II and III that she

had "cast illegaI or fraudulent absentee ba11ots.o OnIy in

Count III was any factual specification provided; and there it

was alleged that petitioner had deposited fraudulent absentee

ballots which she knew to be fraudulent. In none of the counts

was any elaboration given to that portlon of the charge which

accused petitioner of having nvotIed] iIlegallyn or having ncast

i11ega1 ..o absentee baI1ots."

In his instructions to the jury, the trial judge did frame

elaborate charges under which petitioner could be convicted of

illegal voting. After reading S 17-23-1 to the jury, he

explained the statuters provision against oany kind of iIIega1

or fraudulent voting" by defining the terms "iIlegaI" and

"fraudulent.n Tr. 201. Concerning the term "illega]ro the

jury was instructed that ni]legal, of course, means an act that

is not authorized by law or is contrary to the la!r." Tr. 20I.

The clear import of this instruction was that s 17-23-1rs

prohibition against nany kind of i}}egal ... voting" included

any act found to be 'not authorized by 1aw or ... contrary to

the law." The violation of the letter of any law in the course

of voting activities would require conviction under S 17-23-1 as

19



a ',kind of illegal ... voting." The trial judge then instructed

the jury on four st,atutes: A1a. Code S 17-'10-3 (1975) lmiscited

by the judge as s 17-23-31, Tr. 2o2i AIa. Code 517-10-6 (1975)

[miscited by the judge as S 17-10-7lt Tr. 202i AIa. Code S

17-10-7 (1975), Tr. 203-204i and AIa. code s13-5-115 (1975), Tr.

204-205. None of these statutes or their elements was charged

against petitioner in the indictrnent. Their terms provideo

numerous new grounds not alleged in the indictment on which to

convict. The jury was thus authorized to find petitioner guilty

under s 17-23-1 if she had acted in a manner'not authorized by

or ... contrary tO" any single provision of any one of a number

of statutes not specified or even hinted at in the indictment.

The following Paragraphs sumrnarize certain of the provi-

sions of the four statutes, and thereby illustrate some of the

grounds for Iiability of which the indictment provided no notice:

The jury was first instructed on s 17-10-3, miscited by the

trial judge as S 17-23-3, which sets forth certain qualifications

as to who may vote by absentee ballot. The trial judge inst'ructed

that under s 17-10-3 a person is eligible to vote absentee if he

will be absent from the county on election day or is afflicted

with ,'any physical illness or infirmity which prevents his attend-

ance at the polls.n Tr. 202. Thus a finding by the jury that

one of the absentee voters had not been physically "prevent [ed]'

from going to the polls to vote in the run-off would have

constituted the finding of an'act not authorized by... or...

contrary ton S 17-10-3, necessitating petitioner's conviction

20



under S 17-23-1 even though petitioner was given no notice in

the indictrnent that such proof could be grounds for liability.

The trial judge then instructed the jury that s 17-10-6,

miscited as S 17-10-7, reguires, iglgE aIia, that all absentee

ballots "shaIl be serorn to before a notary publicn except in

cases where the voter is confined in a hospital or a similar

institution, or is in the armed forces. Tr. 203. Further,

under S 17-10-7, the trial judge stated that the notary must

swear that lhe voter opersonally appeared" before him. Tr.

203. Accordinglyr the evidence that the voters were not present

at the notarizing, see Tr. 56-64, sufficed to establish per Se

culpability under S 17-23-1, although, againrthe indictment gave

petitioner no warning whatsoever of any such basis for culpabil-
11/itv. _-

The trial judge then instructed the jury that s 13-5-115

provides:

"Any person who shall falsely and incorrectly make any
sworn statenent or affidavit aS to any matters of fact
required or authorized to be made under the election laws,
generalr pEimary, special or local of this state shall be
guilty of perjury. This section makes it illegal to make a
Sworn staternent, oathr oE affidavit as to any matters of
fact required or authorized to be made under the election
laws of this state."

Tr. 204. Both sentences of this instruction contain egregious

misstatements concerning S 13-5-115. The first sentence rePre-

11/ It is noteworthy that ss 17-10-6, 17-10-7 were amended
Jeveral months after petitioner's trial by Acts 1980, No.
8O-732t p. L478r SS 3, 4t and no longer require notarization of
the balIot.

21



Sents a verbatim reading of S 13-5-115 with one crucial error.

The trial judge instructed that S 13-5-115 proscribes "falsely

and incorrectly" making the sworn statements described in the

statute, when in fact the statute proscribes the making of such

statements "falsely and corruptly'! -- i.€., with criminal intent.

The second sentence of the instruction, which apparently repre-

sents the trial judge's interpretation of S 13-5-115, has the

absurd result of making ilIegaI every sworn statement duly made

under the election laws.

frrespective of these misstatements, the charging of S 13-5-115

deprived petitioner of constitutionally required notice. The

misstatements of the terms of a statute which petitioner had no

reason to suspect she was confronting in the first place only

aggravated this denial of due process. It also constituted a

separate and independent denial of due process as alleged in

paragraph 24 of the Petition .Y/

The indictment contained no allegations which could have

put petitioner on notice that her participaEion in the notarizing

process was violative of S 17-23-1 or in any vray criminal. Three

of the four statutes not charged in the indictment but submitted

L?/ The trial judge also misread s 17-23-I in a way which
dipanded the chlrges against petitioner: He instructe<i the jury
tnit S 17-23-1 penalizes one who "deposit,s more than one ballot
for the same oftice.n Tr. 201. In fact S 17-23-1 penalizes one
who "deposits more than one ballot for the Same office as his
ygq._,' ilmpnasis added). This omission by the trial judge-r;aicil-
fi*Cfranged the meaning of the statute so that the mere Physical
act of depositing two or more ballots at the same election --
even ballots deposited on behalf of otl"rer voters violates S

17-23-1. It thus proOuced a new charge against petitioner of
which tfue indictment provided no notice, since the indictment
had recited the relevant portion of S 17-23-1 accurately.

22



to the jury as a basis for conviction under S 17-23-1 made

petitioner's minor participation in the notarizing into grounds

of per se culpability. At trial a large part of of the prosecu-

tion's case was spent attempting to prove through the testimony

of Mr. Rollins, and through questlons posed to virtually all of

the testifying voters, that the notarizing took place outside of

the presence of the voters and that petitioner in Some way

participated in that notarizing. Hence, the charges made for

the first time in the instructions provided new grounds for

culpability which were crucial to petitioner's conviction. The

failure to aIlege these grounds in the indictment violated

petitioner's rights under the Sixth and Eourteenth Amendments.

The violation was all the more significant because evidence of

the proper elements of the one statute charged in the indictment

was insufficient or nonexistent.

The only relevant allegations in the indictment were that

petitioner had 'vote lrl] illegally" (Count I ) or had ncast illega1

absentee ballots" (Counts II and III) in the run-off. These

allegations in no way informed petitioner with particularity

that she could be prosecuted under the rubric of illegal voting

fOr acts "n6t authorized by ... Or o.. cOntrary tO" the four

unalleged statutes charged in the instructions. But 'notice, to

comply with due process requirements must be given sufficiently

in advance of the scheduled court proceedings so that reasonable

opportunity to prePare will be afforded, and must set forth the

alleged misconduct with particularity. "' lq-!9-Qeq1-t-, 387 U.S.

1 , 33 (1967 ) ( citation omitted ) .

23



"Conviction upon a charge not made would be a sheer
denial of due process. "

qe.{o_qq.e_ v.__Or_greg , 299 U. S. 353 , 362 ( 1 937 ) ; see also Dunn v.

UnllqSl States, 442 U.S. 100' 106 (1979) i Jackson v. Viqgi_n-i_qr

443 U.S. 307, 314 (1979), P_re.s-n-e1_!_y. Lggfg.te, 439 U.S. 14, 16

(1978); C_o_lq. v.__{rlerleel, 333 U.S. 196t 201 (1948).

Petitioner was plainly subjected to an egregious violation

of the rule that, in order to satisfy the Notice Clause of the

Sixth Amendment, an inoictment must allege each of the essential

elements of every statute charged against the accused. See

Russell v. United States, 369 U.S. 749, 761-766 (1982)i United

States v. Ramosr 666 E.2d 469r 474 (l1th Cir. 19821i United

S_t-ate_s_ rr._ Oq!!e_r_, 659 F.2d 1306' 1310 (5th Cir. Unit B 1981),

qqqt_. {e_n1gl, 102 S.Ct. 1453 (1982) i Uqite{ States v. Hass,

583 F.2d 216, reh. Q.en!ed, 588 F.2d 829 (5th Cir. 1978), cert.

dqqi_e_d_r 440 U.S. 914 ( .l978); 
Uqfleq_S_!.q!.e.s L. 9gegss, 283 F.2d
13/

155, 158-159 (5th cir. 1960). Here, the indictment failed

l2/ This rule is fully recognized by the Alabama Courts both
as a proposition of Alabama law and of federal constitutional
law. S_qg, €_:g., E_dward_I:_9!1!e_, 379 So.2d 338' 339 (Ala.
Crim. App. 1979). In fact, under Alabama law, failure to
include an essential element of the offense in the indictnent
is regarded as such a fundamental error that it renders the
indictment void, and therefore such an objection to the indict-
ment cannot be waived. See., 919., Barbeq_y=q-lete | 417 So.2d
511 (AIa. crim. App. 19BZl, @344 so.2d 533,
534-535 (A1a. Crim. App.), cert. deniedr 3l4 So.2d 538 (A1a.
1977)i Carter v. State, 382 So.2d 610 (A1a. Crim. App. 1980);
Alfred v. Stater 393 So.2d 1026r 1028 (Ala. Crim. App. 1980);
pd"rr-aEs -v.-Stite, 379 So.2d 338, 339 (AIa. Crim. App. 1979) i
Da-viaEqq q qeqe, 351 So.2d 683 (AIa. Crim. App. 1977)i
Eellglry_y. Statq, 272 So.2d 600 (A1a. App. 1973)i Fitzgqrql{_y.
S_Lat_e_, 303 So.2d 162 (Ala. App. 1974) i Brown v. State, 24 So.2d
450 (Ala. App. 1946); Nelson v. State, 278 So.2d 734 (A1a. App.
1973)i ELLLLqtrg._y..__S-t_e!q., 333 So.2d 610 (Ala. Crim. App.),
Cf_f_:q., 333 So. 2d 61 3 (AIa . 1976) i Eqftro.n*y:_9_!1t_e_, 249 So. 2d
369 (AIa. Crim. App.), g.e_r_!..{.q.n_Lg.q., 249 So.2d 370 (A1a. 1970)i
Whitt v. Stater 370 So.2d 730r 735 (Ala. Crim. App. 1978).

24



even remotely to identify the critical elements upon which her

guilt was made to dePend at trial.
'The indictment also violated the rule of United Stg.!.e.x-Y'

qtrgt{.qLaqE, 92 U.S- 542 ( 1875), in which it was held that

"where the definition of an offense, whether it be at
common Iaw or by statute, includes generic terms, it is no
sufficient that the indictment shaIl charge the offense in
the same generic terms as in the definition; but it must
state the'ipecies it must descend to the particulars'n

rd. at 558 (citation omitted)-

The c-qq!\s-h.qqE rule is fundamental to the notice comPonent

of due process. S-e-e. Qq!t-ed--9.!.qt-e-S-q.-Bggge.ll, 369 U'S' '149 
' 765

(1g62't. It is apposite to this case because ni11e9a1n is

unquestionably a ngeneric term. " KeqE-qr--U-q1-qqq-q.!.1te-1' 172

u.s. 434t 437 (1899); Goodloe v._Eg_r_4.t_L, 505 F.d 1041, 1045

($th Cir. 1g7gl. An inoictment which charges unspecified

illegalities as did petitionerrs in charging her with nvotIing]

iIlegaIlyn or ncasttingl i1legal .o. absentee ballotsn must,

under cruikshank ndescend to the particulars" and identify the

acts and underlying Iaws which aI1e9ed1y constituted the illegal-

ities. Id. In petitioner's situation, Qlqikqrtgqk required

that the indictment allege that petitioner violated S 17-23-1

by failing to comply with each of t,he four statutes as they I''ere

eventually charged against her ln the instructionsr and contain

specific factual allegations giving petitioner fair notice of

the acts which tfere allegedly criminal under those charges '1!/

14/ Had the indictment containecl such alIegation9, constitutional
n-aLi"E-i"e;ir"ro.nts would have been satisfied at least with regard
to the isJues raised in the claim set forth in para. 19 of the
Petition. But subjecting petitioner to liability on such grounds
would still have b6en imlermissible under other constitutional
principles, as alleged in paras. 22-25 of the Petition.

25



such is the conclusion to be derived from Good10*e-

605 E.2d 1041 (8th Cir. 1979), where habeas petitioner

Goodloe had been convicted in a state court of operating a motor

vehicle to avoid arrest. Under Nebraska law the crime allegeoly

committed by the defendant for which he was subject to arrest,

and because of which he was resisting, had to be proven aS an

element of the offense of resisting arrest. Iq. at 1045. The

Goodloe court found that cluring trial the prosecution changed

the offense it was relying on as the crime for which Goodloe

was a1legedly resisting arrest. Id. at 1044-1045. This change

Oenied Goodloe constitutionally required notice. Id. In

addition, irrespective of the change in underlying offenses

at t,rial, the Eighth Ctrcuit held under Cruikshank that Goodloe

was oenied constitutionally required notice because the initial

charge against him had failed t,o include notice of the underlying

offense which Goodloe had allegedly committed and because of

w6ich he was allegedly resisting arrest. The indictment there-

fore failed to "allege an essential substantive element'" Id'

at 1046.

The court reasoned:

The indictlrent upon wtrich Goodloe was tried charged that
he did, in the woros of the statute, nunlawfullY operate
a motor vehicle to ftee in such vehicle in an effort to
avoid arrest for violating any law of this State." 'Ihere
is no inoication from this statutory language that, as the
trial court held and instructed the juryr Eto additional
element must be proven for conviction: actual commission
of the violation of state law for wtrich the defenoant fled
arrest. Once prior violation of a specific qta!'e statute
l:ecarne an elemlnt of the offense by virtue of the trial
court ruling, Goodloe was entitled not only to notice of
that genetal factr but also to specific notice of what law
he was allegeci to have violated.n

v_.*P_qqql!t_,

26



Id. at 1045. The facts of Goodloe are analogous to petitioner's

case, since the four statutes invoked against petitioner which

the state failed to charge in the indictment vrere incorporated

as substantive elements of S 17-23-1's prohibition against

illega1 voting.

In Watson v. Jingo, 558 F.2d 330 (6th Cir. 1977), another

habeas case analogous to petitioner's, the altering of the

charges against the defendant at trial was held to have denied

him constitutionally required notlce. In its opening argu-

ment, the prosecution announced that it would seek conviction on

felony-murder grounds, although the defendant had been indicted

by an Ohio grand jury only for first degree murder. I<|. at 333.

The Sixth Circuit held that this switch to felony-murder grounds

rfas a nconstructive amendment" of the indictment, &. at 336,

and "unquestionably constituted a denial of due Process by not

giving appellant fair notice of the criminal charges to be

brought against him.n Id. at 339 (footnote omitted). See also

Gray v. Rains | 6t52 F.2d 589 (10th Cir. 198I); Von Atkinson v.

Smitht 575 F.2d 819 (1Oth Cir. 1978).

Unless the reasoning of each of these cases is rejected

outright, petitioner must prevail on the merits of her c}aim.

The denial of notice in petitioner's case was even harsher than

in the habeas cases described above, since so many new grounds

for culpability were added against her, some of the new grounds

contained misstatements of 1aw each of which favored the prosecu-

tion, the new grounds represented a substantial retroactive

27



expanslon of the reach of S L7-23-L and

paragraph 24 of the Petitionr dnd all of

petitioner had rested her case. Because

petitioner failed to give her 'notice of

the accusation" against her as required

her conviction must be overturned.

S 13-5-115 as alleged in
this was done after

the inoictment against

the nature and cause of

by the Sixth Amendment,

B.

failed to include sufficient alleqations on the charcles of

frauci to satisfv the Notice C1ause

Each count of the indictment filed against petitioner

alleged at least in the alternative that she had in some way

employed fraud through her voting activities in the run-off. As

is set forth in paragraphs 20-21 of the Petition, these allega-

tions of fraud failed to provide petitioner with the quantum of

notice required by the Sixth Amendment.

In aodition, counts I and II failed to allege fraud as

a necessary element of the offense charged against petitioner.

Counts I and II failed to allege any mens rea whatsoever.

OnIy in Count III was petitioner accused of having acted with

fraudulent intent.
The prejudice caused by these constitutionally defective

Counts is incalculable since petitioner was convicted under a

verdict which conformed to no known form -- an "extra-general

verdict." In a general verdict the jury gives its verdict for

each count without elaboration as to the findings of fact.

Petitionerts indictment was fatally defective in that it

28



Sge-, gq!e-Eal-!y, 75 Am. Jur.2d Tria1 S 885; 76 Am' Jur' 2d Tria1

S 111. But in petitioner's case, despite a three count indict-

ment, there was merely a single verdict pronouncing her nguilty

as chargedn of a single undifferentiated violation of S 17-23-1.

Tr. 223. There is no way of determining under which Count or

Counts the jury convicted petitioner, and the prejudice owing to

a single defective Count therefore requires reversal of petitioner's

conviction. Qe_q xt-qo-rqb-e-{g v. Qa1_1f_orni_a., 283 U.S. 359 (1938 );

!e-f1qr-q1g1-!o- v. C-[1c-qg-o-, 337 U. S. 1 , 5 ( 1949 ) .

( 1 ) rh e f a qLu { -a 
1 lqgqt-Lqqq. -i-q -e-Aq.!L-qqqqq -qe-tre. -qq.qg.!. tt-q-

t ionallv iqqq!!.!e1-e-qt tq-PEo,v.lqe- -qo-E lc-q -qq -t-lfe
inature and cause" of qbq-qlleg.qq.Ua ffqqq.qlen! conduct

I lqt_ i_t i on r _PBr_BgE ePh -2-0- 
)-

Petitioner was prejudiced by each count in which the

allegations pertaining to charges of fraud failed to set forth

the alleged misconriuct with particularity. The Counts stated

nothing more than that petitioner was being accused of voting

fraudulently (Count I), or of casting fraudulent absentee ballots

(Counts II and III) in the run-off. In Count III only was this

Iatter allegation elaborated -- albeit insufficiently t'o satisfy

the Notice Clause to the extent tirat petitioner was accused

of rlepositing the fraudulent absentee ballots with the Pickens

County Circuit C1erk, knowing that the ballots were fraudulent.

In order to pass constitutional musterr dll indictment

29



"must be accomPanied wit,h such a statetitent of the facts and

circumstances as will inform the accused of the specific

offense, coming under the general description, with which he is

charged. n u_nited s_t_qt-e-s_ v_. _Bgg_s.e.1.1-, 369 U. S. 7 49 , 765 (1962)

(quoting United S!-qt-e-s- -v-.- -H.e-s-s- , 124 U. S. 483, 487 ( 1888 ) ; see

-Lls--o- u_rl1_teq_s_t-1t-e_s- v. Beqo_s_, 666 F.2d 469, 474 (Ilth Cir. L982)i

United States v. Outlert 659 F.2d 1306, 1310 n.5 (5th Cir. Unit

B, 1981). Fraud is a ngeneric term" which is insuf f iciertt t,o

provi-,le r-he constituEionally requirerl notice unless rietaileo

f actual allegations are incluoed in the inriictrtrent. 3ee United

Sta-t-e_s_ v. C_r_qi_\qh-qql1, 92 U. S, 542 | 558 ( 1875 ) , (discusseci, sup-Ea

at pp. 25-26). The indictment omust descend to the particularsn

of the acts of the accused whicli were allegediy Eraudulent and

thus proscribed by the statute through the operative effect of

that generic term. S_e_e a]so, U-n,ited -S-tat_e_s_ v-.- -Diec.i.d-qe., 603

P.2d 535, 547 ( 5r-11 Cir. 1979) .

It rras inadequate for the S[ate t,o allege (as it did in

Count III only) that petitioner had deposited frauduient absentee

oaIIoEs in the run-off. Such an accusation failed to inform

nthe defendant... of which transaction, or facts give rise to

tl:e alleged of fense. " United -Qt-qt-e-s- v. O-,lt-lql , 659 F.2d 1306,

1310 n.5 (5th Cir. Unit B, 1981). In order to satisfy the

rule of Cruikshan_8-, the intlir:trnent in its charging of fraud

was required to set forth the transaction alleged to have been

fraudulent, an<l to inform t,he accused of what represelttations

wer{) alleged to have been userl to carry out. tire fraud. For

example in Qq1!e_d_ S_tates v. -C_I_qr_!, 546 F.2d 1130 (5th Cir, 1971),

3r)



the court ruled on an indictment charging the accused with
making fraudulent representations in a loan application to a

United States agency. The court established that its scrutiny

was based inter alia on the Sixth Amendmentrs Notice Clause,

id. at 1133 o.9, and then proceeded to determine whether the

indictment adequately identified the alleged fraudulent state-

ments. Since the indictment specified the apProximate date on

which the alleged1y fraudulent rePresentations rrere made, the

precise forms on which such representations were made, the purPose

for which such representations were made, and the entries on the

forms which were not accurate, the court held that the indictment

had sufficiently put the defendant on notice as to the substance

of the alleged fraudulent statements. Id. at 1133-1134.

By contrast if the indictment fails reasonably to identify

the acts or statements through which the alleged fraud was

perpetrated it is constitutionally deficient under the Notice

Clause. See.1g-, United States v. Nance, 144 U.S. APP. D.C.

477r 533 F.2d 699 (1976); United States v. Curtisr 506 F.2d 985

(1Oth Cir. 1974). In Curtis, a mail fraud indictment alleged:

1) that Curtisr business purported to be a computer matching

service for single people; 2) that Curtis sent out "compatibility

Questionnairesn which he represented would be fed into the

computer; 3) that Curtis took money for this service and placed

ads soliciting customersi 4) that he sent out purported invoices

for computer service work for the purpose of convincing customers

that he was providing computer services; and, 5) that in fact he

31



contracted for services he did not provide. Id. at 987, 989' The

indictment was held defective because, while it stated in detail

the acts used t,o implement the scheme, it did not state what the

actual false promise was. Id. at 987, 989. The indictment was

held defective because, while it stated in detail the acts used

to implement the scheme, it did not state what the actual faLse

promise was. Id. at 989. Quite plainly, however, lt came much

closer to pinpointing for Curtis the nature of the alleged fraud-

ulent statements, and the vehicle used to Perpetrate the fraud,

than did the indictnent filed against petitioner. See also,

United States v. Dorfman, 532 F. SupP. 't 18, 124 (N.D. I11' 1981)

(passage from indictment which stated only that defendants en-

gaged in a "scheme or artifice ... [t]o obtain moneyn through

fraud, nIs]tanding alone clearly would not meet the constitutional
15/

requirement of fair notice of the facts underlying the charg€" ) '-
Petitionerrs indictment did not even begin to descend to

t,he particulars of the alleged fraud. In Count I there is only

a bare disjunctive allegation of fraud, with no elaboration

whatsoever. In Counts II and III it is a11e9ed that it is the

absentee ballots which Yrere fraudulent, and in Count III peti-

tioner is actually accused of having knowingly deposited fraud-

ulent absentee ba11ots. But how those ballots became fraudulent,

E-/ Rulings on indictments in federal cases are also premised
o=i tfre Fifth Amendment requirement of indictment by grand jury,
the Federal Rules of Evidence, and federal common law. See,
g:-g-, tln!!ed.--q!e! .s--Y.--9q!Ler, supra'. However the cases cited
freiein-maEe-cfear-tti;C-tn-e-rufes app-f iea in the brief are mandated
coextensively by the sixth Amendment }lotice clause.

32



and vrhat petitioner a1legedLy did to effect that unexplained

result is unsaid.

Certainly the mere depositing of more than one absentee

ballot, each purporting to be the ballot of a different voter,

would not in itself have constituted fraud or any sort of

illegality. The alleged fraud had to have occurred during the

preparation of those ballots for casting. The State was required

to charge the event or transaction during which the fraud a}-

legedly was committed, and the nature of the acts by petitioner

which aIlegedIy committed that fraud. Because the indictnent

failed in this regard, petitioner had no advance warning of which

of her activities on behalf of the effort to bring out the black

vote among the elderly in Pickens County was being seized uPon

by the State as alleged1y havlng constituted fraud. This fail-

ure to provide constitutionally required notice Yras extremely

prejudicial to petitioner's ability to defend herself especially

in view of the expansive array of grounds and theories of

liability which were sPun out of the indictment in the judge's

charge to the jury. And even if this Court were to conclude

that only one or two of the three Counts was insufficient in its

factual allegations (Petitioner contends that all three of

the Counts were insufficient) -- petitioner's conviction must

st,ill be set aside because the potential Prejudice inhering in

the defective Count or Counts necessarily infects petitioner's

conviction of a single undifferentiateo violation of S17-23-1 by

an extra-general verdict. ;

33 -



(2) The charsins of the ele-rqe-qt-q-9.t-thg-q!teqqe-€

f raulule.q!-votiqg-gqqe-r--S-lZ:?3.:I-gAs--f-a!q!ry

Qe.!gg.t r.Y,e- gqq.e{. 
-qbg. IqLi c q -Ql aqs e !!e-t- i-t- i-o q,

Paragr-aPh 2L)

It is indisputable that in order to satisfy the sixth

Amendment's notice requirement, the indictment filed against

petitioner rras required to a11ege accurately that she had

viotated each element of the statute charged against her. See

Uniteo States v. Ramos, 666 F.2d 469t 474 (Ilth Cir. 1982);

qqi_t_qd_ states v. outler, 559 F.2d 1306, 1310 (5th Cir. Unit B

f981); cert. 9e_trl9{, L02 S.Ct. 1453 (1982); United Statqs v.

Hass , 583 F.2d 216 , reh. denied, 588 F.2d 829 ( 5t,h Cir. 1978 ) ;

sel!: {eqie{, 440 U.s. 914 (1978); QqllqQ states-q.-S-!E8.t19.9.,

283 F.2d 155, 158-159 (5th Cir. 1960). As construed prior to

petitioner's trial, S 17-23-1 required proof of fraud in order

to convict. Fraud vras therefore a necessary element of the only

offense charged in the indictment, see PP. 5-6 sqP-r.a (discussion

of the elements of S 17-23-1 ) , and each count of the indictment

was required to a1lege unequivocally that petitioner was guilty

of fraudulent knowledge or intent. Accord, Wilder v. State, 401

So.2d at 1 61.

Since S t7-23-1 by its terms does not specify fraud as a

necessary element of the offense, such unequivocal allegations

could not be made merely by having the indictment track the

words of the statute. "[I]n an indictment upon a statute, it is

not sufficient to set forth the offense in the words of the

statute, unless those words fu}1y, directly and expressly,

34



without any uncertainty or anbiguity, set forth all the elements

necessary to constitute the offense intended to be punished.n

Russell v. United states, 369 U.s 749, 765 (1962) (quoting

United States v. Carll, 105 U.S. 611,612 (1882)). Id.

The indictnent was required under the Sixth Amendment to'

a1Iege fraud clearly in a manner so that both petitioner and

the jury would know that fraud on her part had to be Proven in

order for her to be convicted under S 17-23-1. Bot'h Count I

and Count II failed to allege fraud as a necessary element of

S 17-23-1, and therefore both were insufficient under the Con-

stitution.
It is true that norma]ly, since each count of an indict-

ment is rneant to charge a separate offense and is therefore to

be treated in effect as a separate indictment, the finding of a

fatal defect in one count does not necessarily imperil the

other counts of the indictment or any guilty verdict announced

as to t,hose counts. See United States v. Huff , 512 F.2d 66, 69

(5tfr Cir. 1975). But petitionerrs presents an unusual case

because of the extra-general verdict pursuant to which she

was convicted. It is therefore impossible to overturn the

conviction only insofar as it rested on the defective counts

because it is impossible to determine on which of the counts

filect against petitioner the jury verdict rested. It is quite

clear that the verdict may have rested on one of the two counts

which failed to al1ege each element of the offense.

35



under these circumstances, the defective counts inflicted

incalculable prejudice on petitioner. This is not a case such

as unitecl states vr-Be!-Iin | 472 F.2d 1002, 1008 (2nd cir. 1973),

where it was aPParent on the record that the njury very carefully

considered the evidence on each count and rendered its verdict

on the evidence relative thereto.n Rather, Petitionerrs posture

is comparable to united states v. Drevfusr 52S F.2d 1064 (5th

Cir. 1972), where the court overturned the conviction on a

twenty-two count indictment because of a single defective count

since, under the circumstances present in that caset the court

felt that there was a significant probability t'hat the submission

of one defective count to the jury Prejudiced the deliberations

as a whole. Id. at 1071-1072. Petitioner's conviction by a

single verdict of nguilty as charged" uPon all three counts of

her indictment without differentiation suggests even more

strongly than in Dreyfus a significant possibility of prejudice,

and the judgment of conviction must therefore faII because of

the unconstitutional fallure of Counts One and Two to a11ege

each necessary element of S 17-23-1.

IV

PETITIONER I S CONVICTION
HER DUE PROCESS RIGHTS
EX POS? FACTO LIABILITY

WAS OBTAINED IN VIOLATION OF

IN THAT SHE WAS SUtsJECTED TO

As set forth in paragraph 24 of the Petition, the jury

instructions at petitioner's trial impermissibly broadened both

S 17-23-1 and S 13-5-115, subjecting her to ex post facto 1ia-

35



bility in violation of the Due Process Clause of the Fourteenth

Amendment. Bouie v. Citv of Columbia, 378 U.S. 347 (1963)'

The instructions relevant to this claim have already

been set forth in the discussion supra, Section III, Pp' 18-22'

To summarize, the following instructions violated Bouie: first,

the instruction defined the term "i1lega1" and incorporated four

other statutes into the "illegality" element of S 17-23-1;

secondr the instructions making pet,itioner's mere participation

in the notarizing grounds for culpability under s 17-23-1;

third, the instruction misstating s 13-5-115; fourth, the

instruction expanding s 17-23-1 by omitting the statutory words

nas his vote., Each of these instructions retroactively enlarged

the reach of the statutes to which they pertained.

The above instructions did away with any form of mens rea

as a necessary element of culpability under S 17-23-1 and
16/

provided for conviction on st,rict liability grounds.- The

definition of "illega]" allowed conviction nfor any act not

authorized by o.. or... contrary to the lawr" without reference

to any element of mental culpability. Each of the four statutes

incorporated into S17-23-1 was defined as requiring no proof of
17/

any form of mental culpability.- None of the instructions

E-/ The trial judge did instruct the jury that it_could
6nvict petitioner-for any kind of illega1 or fraudulent

""ii"g. 
T;. 2OI. But nfraudulentn was thus merely alternative

to';iilegal'as a ground on which the jury could convict peti-
tioner.

JL/ As sras stated in the discussion, supr?, section IIIA, one
6E those four statutes S 13-5-115 -- actually does require
pio"i "f criminal intent: that the accused acted ncorruptly::'
ilut the instructions, by substituting the word "incorrectl!r"
turned S 13-5-115 into a strict liability offense'

37



describing the liabitity that could arise from petitioner's
participation in the notarizing required proof of any sort of

mental culpability. And the deletion of the words 'as his vote'

from the text of S 17-23-1 omitted what was at least implicitly

a mens rea requirement: that the defendant must misappropriate a

second vote as his oldn -- ir3.', cast 'more than one ballot for

the same office as his vote" -- before convictlon could be had.

See p . 22 n. 12, ggpEl.

The elements of S 17-23-1 as established prior to petition-

er's trial were set forth in Section II, supra, at pp.5-6 and

p. 22 n.12. The governing cases interpreting S t7-23-1 had

established that all of the provlsions of the statute, including

the prohibition against "any kind of illegal or fraudulent

voting' constitute a unified prohibition against multiple

voting. See @, 52 AIa. 299, 303 (1875) ('[t]he

offense denounced by the statute . . . is voting more than

once'). Under this construction, S 17-23-1 does not permit the

incorporation of other statutes into the offense as indepenoently

sufficient grounds for a finding of "iIIegaIn voting. Nor can

participation in the notarizing of absentee ballots be per se

grounds for culpability. The Alabama Supreme Court has also

construed S 17-23-1 to require a showing of mens rea in order to

establish liability. See p. 6 and n.3' supra; see also Gordon

v. rltate, 52 Ala. 308, 309-310 (1875).

38



Thus in the present case the only grounds on which petitioner

could be convicted in keeping with due process were that she

voted more than once through the use of fraud. As was established

above, the jury instructions expanded S 17-23-1 well beyond

these grounds.

The instructlons thereby gave S 13-5-115 and S 17-23-1 the

effect of ex post facto laws. An ex post facto law "makes an

action done before the passing of the Iaw, and which was innocent

when done, criminal; and punishes such aqtionr oE t... aggravates

a crime or makes it greater than it was, when committed'r'

Bouie v. Cigv of Columbia, 378 U.S. 347, 353 ( 1963) (quoting

calder v. Bull, 3 U.S. (3 DaIl.) 386, 390 (1798). The trial

judgers instructions had precisely those effects. For examPle,

prior to the instructions, "fa}sely ano incorrectly" making a

Sworn Statement required under the election laws could not,

without further proof of crinrinal intent, have warranted crlminal

I iab il ity. Under the instructions, a prison term of between 2

and 5 years became warranted for such an action'

In Bouie v. City of Columbia, 378 U.S. 347 ('1963), the

Supreme Court, after quoting the above language from Caloer v.

for a stateBull, held it to be a violation of due process

court to achieve the effect of an ex post facto law through

judicial construction. Id. at 353.

olf a judicial construction of a criminal statute
is uneipected and indefensible by reference to the
Iaw whith had been expressed prior to the conduct
in issue, it must not be given retroactive effect."

at 354, quoting, HalI, General Principles of criminal Law 61

ed. 1960).

rd.

(24

39



It is plain that the constructions being challenged by peti-
tioner were unexpected and indefensible. The trial judge's in-

structions on S 17-23-1 in effect rewrote the statute previously

construed in Wilson and Gordon. The actus reus of S 17-23-1 was

vastly expanded beyond proscribing multiple votingr so as to

allow the incorporation of diverse statutes and to reach even

mere participation in the notarizing process. The intent

element of S 17-23-1 was abrogated. In effect, a neur statute

was written. The intent element of S 13-5-115 was similarly

abrogated and that statute was given an absurdly broad reach.

These actions denied petitioner due process of law because

she was denied fair warning of the crime prohibited. Bor$e v.

Citv of Columbia, .W,, 378 U.S. at 354-55.

In Marks v. United States, 430 U.S 188 (1977), the defen-

dantrs obscenity conviction was overturned on Bouie grounds and

the Court emphasized: 'we have taken special care to insist on

fair warning when a statute regulates expression and implicates

First Amendment values." Id. at 196. A statute like S17-23-1,

which overhangs activities associated with voting and the

gathering together of persons for the advancement of shared

political beliefs, "implicates First Amendment vaIues.tr See

Petition, para. 22. This implication could hardly be better

illustrated then by the present case, where S 17-23-1 was used

to penalize alleged illegalities occurring in the course of an

effort to bring out the black vote among the elderly in Pickens

County.

4A



Thus,

to ensure

which the

Iiability.

Bouier the

heightened scrutiny is required in the present case

that petitioner received fair warning of the conduct

jury was instructed could be the basis for criminal

But even under the normal scrutiny required by

offenses charged against petitioner in tne inst'ruc-

tions were expanded in a retroactive and unforseeable manner in

violation of her due process rights.

v

PETITIONERIS CONSTITUTIONAL RIGHTS WERE VIOLATED
BY HER CONVICTION ON STRICT LIABILITY GROUNDS

As set forth in paragraph 25 of the Petition, the subjec-

tion of petitioner to harsh criminal penalties on strict

liability grounds denied her the due process of Iaw guaranteed

by the Fourteenth Amendment.

The jury instructions relevant to this claim have already

been summarized and discussed at pp. 18-22, 37-39 5g,. The

plain effect of those instructions was to permit the jury to

convict, petitioner on strict liability grounds. Her participa-

tion in an effort to aid eloeriy blacks in Pickens County to

vote by absent,ee ballotr dnd in particular her allegeo particiPa-

tion in the notarizing of those ballots, lras made criminal per

se with no showing of mental culpability of any sort required.

The power of the states to impose criminal liability without

"any element of scienter ... is not without lirnitation.' Smith

v. California, 35'l U.S. 147, 150 ( 1959). In Smith the Court

struck down a California statute which made it criminal for book

41



vendors to have obscene materials for sale in their place of

business. The Court held that the absence of a scienter

requirement -- i.€., it the very least a requirement that the

selIer have knowledge of the contents of the materials

rendered the statute violative of due process.

The impact of the law under attack in Smith on protecteo

First Amendment conduct was a salient factor in the Courtrs

holding. The Court concluded that the statute, because of its

strict liability characteristics, would tend to chill the

dissernination of non-obscene writings protected under the

First Amendment. & at 152-155.

?his aspect of the smith holding bears directly on peti-

tionerrs case. An effort such as the one in which petitioner

was involved a gathering together of blacks to aid and

encourage other blacks to vote is the sort of group activity

aimed at the ocommon advancement of political beliefs" which

invokes the protection of the First Amendment. Kusper v.

Pontikes, 414 U.S. 51, 55-57 (1973). Allowing conviction

under S 17-23-1 without proof of mental culpability is just as

like1y to deter the exercise of constitutionally protected

conduct as vtas the statute Struck down in Smith. For that

reason the strict liability aspect of S 17-23-1 is central to

both the claim of applied overbreadt,h set forth in para.22 of

the Petition, and the claim of facial overbreadth set forth in

para. 23 of the Petition.

42



But the claim set forth in para. 25 of t,he Petition, and

briefed herein, is not dependent on the fact that S 17-23-1 was

in fact applie<i in this case to punish constitutionally protected

conduct. It is enough that a statute regulating voting may, Lf

it imposes strict liability, have a chilling effect on the

exercise of constitutionally protected conduct. In any event'

Smith recognized that limitations are imposed by the Const,itution

on the statesr powers to exact criminal penalties without

scienter requirements neven where no freedom-of-expression

question is involved." Id. at 150. Petitioner's conviction

ran afoul of these limitations. Here, P€titioner was denied due

process for the sole reason that she, as a defendant in a

criminal proceeding, was subject to conviction on a strict

Iiability baqis for an offense which clearly does not fa1]

within the narrow bounds wherein strict liability is permitted.

The hostility of courts to strict liability offenses has

its roots in the common law. Strict liability crimes are

contrary to fundamental princlples of Anglo-American juris-

prudence. As Blackstone wrote, "to constitute a crime against

human laws, there must be, first, a vicious wil}.n 81. Comm.

Bk. 4t Ch. II (Chase ed. at 861). The Supreme Court has

repeatedly recognized the repugnance of strict liability crimes

to the central tenets of the common law which form the founda-

tion of our jurisprudence. See, 91.., Dennis v- United

States, 341 U.S. 494, 500 11951); Morissette v. United States'

342 U.S. 246t 250-251 (1952). The Alabama Supreme Court has

43



recognized the samer €v€rl in one of the few cases in which

it construed S 17-23-1rs predecessor statute, Gordon v. State,

52 Ala. 308, 309 (1875) ('A wrongful act and a wrongful intent

must concur, to constitute what the law deems a crime.n). For

this reason, strict liability crimes have a ogenerally ois-

favored status" under the Constitution. Unlted States v. U.S.

Gypsum Co., 438 U.S. 422, 437-438 (1978). A long line of

Supreme Court precedent establishes that strict liability
crimes are permissible only in the limited area of what are

defined as public welfare offenses, where the State has a

manifestly strong interest in regulating certain hazardous

activities, and tailors both the reach of the statute and the

penalties for what is ostensibly a regulatory purpose.

For example, a statute prescribing strict liability was

upheld in Shevlin-Carpenter Co. v. Minnesota | 218 U.S. 57

(1910), where the petitioners had been charged under a Iaw

penalizing the violation of the terms of state logging permits.

The law required no proof that the accused was aware of acting

against the t,erms of the permit. The law was held constitution-
a1ly permissible since petitioners were engaged in the business

of logging, which the state certainly had a strong interest in

regulating for the protect,ion of public safety. E. at 68-69.

In United St,ates v. Balint | 258 U.S. 250 (1922) | the Court

upheld a Iaw which provided sanctions for the selling of unreg-

istered drugs, without requiring proof that the defendant knew

the drugs were subject to registration. Id. at 250-251. In

a

44



I

,

ooing Sor it carefully clistinguished measures aimed at the

regulation and safeguarding of potentially dangerous activities,

such as the selling of drugs, from other laws providing criminal

penalities. Id. at 251-252. In the case of the former, Iaws

aimed at the "achievement of some social betterment rattrer than

the punishment of the crimes as in cases of mala in ser" E. at

252 | Congress could require the person resPonsible for the

activity to take special precautions, and coulo impose sanctions

for failure to do so. Sirnilarly in United States v. Freed, 410

U.S. 601 (1971), it was held permissible to impose sanctions for

the criminal Possession of hand grenacies upon proving only that

the accused had knowledge that the thing possessed was a grenade'

The highly dangerous nature of the thing Possessed obviated the

need t,o prove mens rea an<i allowed the government to impose on

the accused the burden of knowing about such regulations' Id'

at 607-609.

These cases thus establish a narrow area of public welfare

offenses where proof of mens rea need not be requireO' Just'ice

Blackmun, while a Circuit Judge, synthesizeci the Supreme Court

Iaw on the subject, and devised the following criteria for laws

within that area.

Where a federal criminal statute omits mention of intent
and where it seems to involve what is basically a matter
of policy, where the standard imposed is, under the
cirlumstinces reasonable and adherence thereto properly
expected of a person, where the penalty is relatively sma1I,
whlre conviction ooes not gravely besmirch, where the
statutory crime is not one taken over from the common 1aw,
and wher-e congressional purPose is supporting, the statute
can be construeo as not requiring critninal intent. T[e

l]

45



a

I

elimination of this element is then not violatlve of the
due process clause.

Holdridq€ v. United States | 282 F.2d 302t 310 ($th Cj-r. 1960).

In no way can the aPplication of S 17-23-1 to petitioner as

a strict liability offense meet the requirements of due process

under the cases cited above. rt is clearly not a statute with

a primarily regulatory purPose aimed at persons engaged in

dangerous enterprises. The penalties permitted by the statute,

a mininrum of two years imprisonment and a maximum of fiver C€t-

tainly ogravely besmirch.' f1[. The statute is a traditional

malum in se criminal offense, and the absence or removal of mens

rea as an essential element violates due process.

Such a conclusion is supported by €.9.7 United States v.

Boerner, 508 F.2d 1064 (5th Cir. 1975), which construed a

statute providing criminal penalties for the illegal transporta-

tion of aliens. The court concluded that "the s'!a!qte wouLd

be unconstitutional if construe{ so as to permit a finding of

guilt without Iguiltv] knowledqe.' I<[. at 1068 (emphasis supplied).

See a1so, Bland v. United Statesr 2gg F.2d 105, 108 (5th Cir.

1962) .

The conclusion is inescapable, t,hen, that the trial judge's

construction of S L7'23-L to permit conviction of petitioner

without requiring proof of guilty knowledge denied her due process.

The force of this denial is not diminished by the instructions

alternatively permitting the jury to find guilt based on proof

of fraud. The verdict was a general one. Under Stromberg v.

California, 283 US. 359 (1938), the conviction must be set aside

a

-46



a

because the jury might have relied on the impermissible

strict liability grounds to convict petitioner.

In conclusion, for the reasons cited above, s 17-23-1 was

unconstitutional as applied to petitioner.

CONCLUSION

This Court should grant petitionerrs mot,ion for sunmary

judgment, grant the petition for a writ of habeas corPusr €trd

clischarge petitioner from the unconstitutional restraints imposed

upon her by her conviction and the conditions of her parole.

Dated: JanuarY , 1984

Respectfully submitted,

VANZETTA PENN DURANT
639 Martha Street
Montgomery, Alabama 36108
262-7337

JACK GREENBERG
LANI GUINIER

99 Hudson Street, 16th Floor
New York, New York 10013
(212) 219- 1 900

Attorneys for Petit,ioner

Of Counsel:

Ar:thony G. Amsterdam
N.Y.U. School of Law
40 Washington Square South
Room 327
New York, New York 10012
(212) 598-2538

Siegfried Knopf
Suite 5060
555 California Street
San E'rancisco, California 94104

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CERTIFICATE OF SERVTCE

I certify that a coPy of the foregoing documents have been

served uPon Jean Wl11ianrs Brown, Esq., Assistant Attorney General,

by maiting saine to her by first class united states mail, postage

prepaidr oll this 18th day of January, 1984, addressed as follows:

JEAN WILLIA!{S BROWN, ESQ.
Assistant AttorneY General
250 Administrative Building
lrtontgomery, Alabama 36130

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