Reply of Respondents to Petitioner's Response to this Court's Order of December 2, 1983

    IN THE UNITED STA1ES DISTRICT COTIRT
FOR THE HIDDIE DISIRICT OF A],ABAUA

NORTHERN DIVISION

!{AGGIE B0ZEi{AN,

Petitioner
\IG

EAION tl. IAUBERT, €t al.,
Respondents

CIVII ACTION
N0. er-H-574-fl

REPLY OF RESPONDENTS TO PETITIONERIS RESPONSE

0n December 2, 1981, this Court entered an order

requiring petitioner to file "a brief or other document

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

Petitioner has filed vhat ehe calls a "response" to

the Courtrs order in which she merely lists uhat she

believes to be the eight issues raised by the petition
and in uhich she states she intencls to file a notion for
sumnery judgrent as to her listed issues B, C, anC D.

fn replying to this 'response' by petitioner, the

respontlents are unsure as to how to proceed sinee

petitioner nakes no argunent as to her position based on



the state trial record. Houever, reepondents ui11

attempt to acldress eaeh of the issues lleted ln the
n response . r

fn Iesue A, as denominated 1n petltionerfs

"response," questions the suffieiency of the eviclence to

support petitioner's convietion uncler A1_g!gge_!-qqq 1975,

$ tt-zr-t.
Petitioner contends the only evidence linking, her to

the absentee ballots in question L'as that she may have

been present when the absentee ballots yere frauclulently

notarizetl, but that there was no eviclence that petitioner

or anyone assoeiated with her had cast any of the 19

ballots or that any of the ballots were cast

fraudulently.

,.. 
It is elear from the record of petitioner I s trial

that she participated in a scheme to cast two or Eore

fraudulent ballots for a single candidate in the 1978

Demoeratic Primary run-off election.

Petitioner yas present with Julia Uilder when the

notary pub11c notarized several absentee ballots and vhen

none of the persons who had purportedly signed the

ballots uas present.



She uas told by the notary that ln ordler for the

ballots to be 1egal1y notarizecl the personB elgnlng the

ballots hail to be present.

Although the notary public testified petitioner vent

with him to Pickens County to assist hin ln talklng to

the persons who alIegedIy eigned the ballots, this uas

after the ballots had alreacly been cast on Septenber 25,

1979. ,
The ballots had been brought to the notaryre offiee

by petitioner and eo-defendant Julia Hilcler, and before

bringing the ballots to hie office, petltloner had

te).ephoned the notary about notarizing the ba11ots.

At least tyo of the ballots notarized on this
occasion bore forged signatures -- that of I,ucil1e Harris

and .{hat of Sophia Spann. Petitioner hacl talked vith l4s.

Spann about voting an absentee ba1Iot, but Hs. Spann tolC

her she voted at the po11s.

0n Sepgember 25, 1978, uhen co-defendant Julia
l{ilder depcsited the 19 absentee ballots at the circuit
clerk's office, petitioner accompanied Julia Uiltler to
the courthouse; anil the eviclence tlas clear Juli a Wilder

caused at least two forged ballots to be east as her

choice for a single canditlate.

,



ac ..

Thus, there yas anple evidlence from which the Jury

coultl reaeonably eoncludle that petltioner partlctpated 1n

a echene vlth Ju1la tllldler to cast at least tuo forgedl

absentee ballots for a eingle office in the run-off
election.

Under Alabama 1aw, aecompllces, aiclers and abettor6,

and co-conspirators in the eonmission of a felony, are

indictecl and trietl as prineipals. Alabaroa Cocle 197j,

$ t l-9-r .

The evidence then clearly supports petitionerrs
conviction uncler Count Tu'o of the indictment.

Under fssue B(1), BS denominated ln petitionerr6

"response," petitioner eomplains the indictment uas

eonstruetively anended by the trlal courtrs jury

inst4uctions nhich included instructions pertaining to
four other statutes than the one under vhich petitioner
was indieted.

No objection uhatsoever yas made at trial to the

trial eourtrs oral charge. Thus, Do issue eoneerning

constructive anendnent or erroneous jury instructions
couLd have been raised in the Alabama Court of Crininal
Appeals. Brazell v. State, 421 So. 2d 521 (lta. Crim.

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

forecloses consicleration of these clains on the nerits Ln



a;

e fecleral habeas proceecllng.

u.s. 72 (rg??).

Halnuright v. Sykes, 4r,

As to Issue B(2) aB dlenoninateil ln petltlonerre

"response,' respondente defer to the reasonlng ancl

authority eitecl by the court of criroinal Appeals that the

lndietnent was constitutionally atlequate to appriee

petitioner of the nature of the eharges agalnst her.

Issue C -- beeause no objeetlon to the trlal pourtrs

oral charge was nade at trial, the nerits of petitionerfs
claim ie forclosed in a federal habeas proceecllng.

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

fssue D in the ilresponser is another eoroplaint about

the trial eourtrs instruetions i.e., that the trial
court's instruetions a-nounted to presenting I ll-Zl-1 and

$ tlr:-tt: to the jury as strict liability offenses.

Again, no such objeetion L'as raised to the trial courtfs

instruction by petitioner. Eenee, petitioner may not

raise the matter noh' in a federal habeas proceeding.

Brazell v. State, supra; tainsright v. Sykes,6upra.

fssue E in the 'response" ie that petitioner vas

convicted for her participation in conduet protected by

the Voting Rights Acts, and protected by the First,
Fourteenth, and Fifteenth Anendnents. Respondents do not



belleve these lavs protect e pereon uho votee twiee ln
the 6ame eleetlon for the BaDe office tn vlolatlon of

state Iaw by eastlng forged absentee bal-lote purporting

to be the absentee ballots of registerecl voters.

In Issue F, petitioner eontenils that Codle $ 17-Zr-1

is uneonstitutionally vague anrl overbroad on 1ts face 1n

that it does not provide fair notiee of the concluct

prohibited. t
It ie well established that vagueness challenges to

statutes whieh tlo not involve First Anendnent freedons

must be exaroined ln the light of the facts of the case at

hand. United States v. Mazurie, 419 U.S. 544 (tgZf).

Although petitioner makes sone assertions about her

activities in a11egedIy aiding elderly blacks to vote

bej.ng within the purview of First Amendment protections,F

it is clear the statute under uhich she uas convicted

does not reaeh such aetivities. The statute prohibits

casting more than one ballot for a single office in a

given election. f'urthernore, the statute clearly gives

notice that what petitioner did L'as prohibited under the

particular facts proved at trial she caused at least

two forged ballots to be cast for her choiee for U.S.

Senate clemccratic candiclate in the run-of f election.



fseue G 1n petitionerre ilreeponeerr concerns the

etate belng allouecl to nlnpeaehn two of 1te ovn ultnesses

at trial -- l{s. Janie T. Richey and }le. Fronnle B. Rice.

- No objectlon was nade at trial when the prosecution

natle reference to a auorn out-of-eourt etatement by lrls.

Riehie to refresh her recolleetion. Thusr Do error could

be predicatecl on appeal on this point in the Alabama

appellate courts. Eughes v. State, 412 So. 2d 295, (AIa.

Crin. App. 1 982). Antl this proeedural default aB to this
partieular witness in state court foreeloses a

consideration on the nerits in a federal habeas

proceeding. tlainwright v. Sykes, Ey2!g.
As to ltis. Riee, ehe had given a Bworn tlepcsition on

October 18, 1978, iD uhich she tlenied having signed the

abse.ptee balIot bearing her nane ancl tlenied knouing

anything about the ba11ot. (n. 145) Sire also gave the

sp'rre testinony at JuIia Wilderrs tria1. Houever, at

petitioner's tria1, l{s. Riee testifieC she dld sign the

ballot in question.

The prosecutor claimed surprise, and the trial court

granted the proseeutionre notion to declare the witness

hostile and to allow the prosecutor to question the

vitness about her prior ineonsistent etatenent. (R. 1rS-

142) Petitioner objected to this.

7



Untler the rules of Alabana evidence, the trlaL
courtre rullng yas eorrect. C. Gamble, llcElroyre Alabana

Evitlence, $ t 55.Ot (Z) (a), (u), antl (e), (rra ed. 1977),

and eases eitedl therein. Ancl petitloner has clted no

authority that thie Alabana evidentiary ruLe controvenes

any eonstitutional right of petitioner.

In Issue H 1n her Iresponsern petitioner elalns she

yas subjected to tliseriminatory enforcenent of the,

statute because of her race and because of her activism

in trying to get others to vote.

Proof of this, eontends petitioner, ls there is no

record of anyone ever having been prosecuted in Pickens

County before petitioner was charged and convleted under

Code $ tZ-zr-r.
.,Discriminatory enforeement of laws in violation of

the Equal Protection Clause is a clefense to a criminal

prosecution under Alabana law. Houever, the burclen is on

the defendant to plead anC prove the cliseriminatory

enforceraent. Starley v. City of Birningham, ,77 So. 2d

1111 (Afa. Crim. App. 1977), vrit denietl, A1a., ,77 So.

2d 1114.

8



Petitloner dtd not plead discrinlnatory enforcenent

or offer any proof thereof at her etate erlnlnar trlal.
Beeeuee of thie proceclural defaurt, ehe ts forecloeeir

fron a revleu on the nerlte ln her fecleral habeae

proceeding. Yainwright v. Sykes, 6upra.

Respectfully eubnlttecl,

(

GE}iERAI

SISTANT ATTORNEY GENERAI

ASSISTANT ATTORNEY



rni

CERTIFICATE OF SERYICE

I hereby certify that on thls tOth day of January,

1984, I Ald serve e copy of the foregolng on the attorney

for Petltloner by nailing the aaue to her firet clase

poetage prepaitl and adltlreesed aB folloye:
Vanzetta Penn Durant
519 ltartha Street
Itlontgomery, Alabana rSlOS

PT5'rr6CI
..,AN I I i;i4

.(

SSISTANT ATTORNEY GENERAI

to