Brief and Argument of Attorney General Graddick

    7-t- zj 
\

SECOND DIVISION

IN THE

sds

-s#LtFF)

se$r-r-..p

e-s
NUI4BER 252

ALABAMA

APPELLAI.IT

VS.

STATE OF ALABAI"TA,

l-

i

a
ON APPEAL FROM

OF PICKEIIS

APPELLEE

THE CIRCUIT COURT
COTJNTY, AI,ABAMA

BRIEF AND ARGUMENT

OF

CHARIES A. GRADDICK
ATTORNEY GENERAL

AND

JEAI{ WILLIAMS BROWN
ASSISTAI{T ATTORNEY GENERAL

ATTORNEYS FOR APPELLEE

C

I ADDPESS OF COUNSEL:

Office of the Attorney General
250 Administrative Building
54 North Union Street
Montgomery, Alabama 36130



TABLE OF CONTENTS

PAGE

TABIE OF. CASES ----------r-

TABLE OF STATUTES-..- --.ii

sTATEI\,18i\tT OF THE CIISE---- --:------------1

STATEMBNT OF THE FACTS------ -.-.4

ARGUMENT

I WHETHER CODE OF ALABAMA L975,
SECTION IONALLY
souND?-- ------'L2

II WHETHER THE INDICTMENT AGAINST
APPELLANT WAS DEFICIENT?- ---.--I7

III WHETHER THE STATE PRODUCED
SUFFICTENT EVTDENCE TO SUPPORT
APPELI,ANT'S CONVICTION?.--- .-.-22

IV WHETHER PREJUDICIAL ERROR OCCURRED
IN TTIE PROSECUTIOT{I S CLOSING ARGUIVIENT?-.-.-.---27

V WHETHER THE COURT I S ORAL CHARGE WAS

IMPARTIAL?------ ---.---28

CoNCLUSTOI$----- ----"----29

CERTIF'ICATE OF SERVICE- ---------30



TABLE OF CASES

PAGE

Andrews y. State, AIa.Cr.App. , 344 So.2d
533 (L977 ) cert. denied, A1a.,

538 So.2d 538 (L977) ---------2, 20,

Birge v. State, A1a.Cr.App.,
301 So.2d, 286 (L974) ------- :----?, 20 n

Boltn v. State , 266 AIa. 256,
@sgz (r9s7) -----2, 16,

Bouldin v. St-a!_e, L79 So.2d (1955) ---------------3, 22,

Chambers v. Stqte, Ala.Cr.App.,
ffio cert. denied, AIa.,' 364 So.2d 420 (L978)---- ---3, 2L,

Donahey v. City of Montgomery,
43 AIa.App. 20, L78 So.2d 832,

cert. denied, Ala., 178 So.2d 837 (1965)-----3, 2L,

Hi}I, Terfy Glenn v. State,
. 4, LgTg)----------------2, 16,

Rabe v. Washington, 405 U.S. 331,re ;-,973)------ -------2,L4,
Rowan v. United States Post Office Department,

-------2, 15,

Standard OiI v. State, L78 Ala. 400,
) ------- ---"'--2, L6 ,

Young v. State, AIa.Cr.App.,
348 So.2d 547 (L977)------- -----3, 2I,

-.I--



Code of Alabama L975,

Code of Alabama L975,

TABLE OF STATUTES

PAGE

Section L5-8-25------- ---2,'L7,
Section L7-23-I----- --'--2, L2, 15,

-Lt-



STATEMENT OF' THE CASE

The Statement of the Case as set forth in Appellant|s

brj-ef is substantially correct and is adopted herein by

reference.

-1-



ISSUES PRESENTED EOR REVIEW

I
METHER CODE OF ATABAI{,A 1975, SECTTON
L7-2a-T OUND?

Code of Alabama L975

Rabe v. Washington
ffi
92 S.Cr. 993 (1973)

Rotan v. United States

ffi
90 s.cr. 1484 (1970)

Bolin v. State
ffi
96 So.2d 582 (1957)

Standard Oil v. State

59 So. 667 (1912)

Terrv G1enn HiLI v. State

(Ms.Op. Dec. 4, 1979)

II

TIIHETHER THE INDICTMENT AGAINST APPELI,Ai\IT
WAS DEFICIENT?

Code of Alabama 1975
Section 15-8-25

301 So.2d 286 (L974')

Andrews v. State
@o.2d533
cert. denied, AIa.,
538 So.2d 538 (L9771

Birqe v. State
AIa. Cr.App.

(Le77l

-2-



Donahey v. City of Montgomery
43 AIa.App. 20
178 So.2d 832
cert. denied, AIa.,
178 so.2d 837 (195s)

Chambers v. StateW
364 So.2d. 4L6
cert. denied, AIa.,
364 So.2d. 420 (1978)

Young v. State,
AIa.Cr.App.
348 So.2d 547 (L977)

Bouldin v. State
ffigos)

III

WHETHER THE STATE PRODUCED SUFFICIENT
EVIDENCE TO SUPPORT APPELLAIiIT I S CONVICTION?

IV

WIIETHER PREJUDICIAL ERROR OCCURRED IN
THE PROSECUTIONIS CLOSING ARGUMENT?

v

WHETHER THE COURTIS ORAL CHARGE WAS II4PARTIAL?



STATEMENT OF THE FACTS

PauI Rollins, a notary public from Tuscaloosa, Alabama

testified that he had known Appellant for five or six years.

(R. 15) Prior to the election Appellant and some other

women came to his office and presented him with a number

of absentee ballots to be notarized. (n. 17) Although

the ballots had not been signeC in his Presence, Rollins

notarized them on September 23, 1978, (R. 20-2L) based

upon Appellant's representation to him that the voters'

signatures were genuine. (R. 231

On cross-examination Rollins stated that he had told

Appellant that as a condition to his agreeing to notarize

the ballots she would have to take him to the individ.ual

voters and let them swear that they had signed their own

ballots. (n. 35)

RoIIins subsequently went to Pickens County and

Appellant carried him to various housing projects. Although

he required no identification of the individuals, he statecl

that each person swore on oath that he had. signed his or

her own ballots. (R. 36)

RoIlins was somewhat uncertain whether he had visited

the voters to verify signatures in the democratic primary

or in the general election in November. (R. 37-38).

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Janice Tilleyr Eln employee of the Pickens County

Circuit Clerk's Office, testified that she processed

absentee ballots. (n. 40) After outlining the duties

connected therewith she stated that in the week prior to

the September 26, 1978 Democra;ic Party run-off she saw

Appe1lant in the circuit clerk's office several times.

Appeilant asked for absentee ballot applications and

was given about fifty of them. (n. 39-45)

Ms. tilley noticed that all of the absenLee ballots
showed one of the same three addresses: Route 2, Box 318,

Carrollton, Alabamai 532 10th Avenue, N.W., Aticeville,
Alabama; and 601 10th Avenue, N.[V., Aliceville, Alabama.

(n. 46) She brought this to the Circuit C1erk|s attention,
who then alerted the d,istrict attorney. (n. 46)

LouieCo1eman, the Pickens County Sheriff, testified,
that since the election the absentee ballot box had been

locked up in his custody. (n. 62) Pursuant to a court
order Coleman delivered the absentee ballot boxes to the

district attorney. The contents were examined, then

locked back up and returned to the vault. (n. 65)

Chaqles Tater Erl investigator for the d.istrict attorney's
office, was instructed to cond.uct an investigation con-

cerning alleged discrepancies in absentee voting. When

he first saw the ballot box, it was locked and, sealed.

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(R. 68-69) tn his investigation he noted. that of around

39 ballots, the same three addresses kept recurring; he

also noticed that the votes had all been cast fo.r the

same candidates. (n. 73)

n eighty-seven year old.man, testified
(R. 81)-ed to vote in Pickens County'

and he applied for an ahsentee ballot. However, he did

not remember filling in the ballot and although his
signature appeared to have been signed to the ballot, he

statecl that he could not write at all and had not touched

his pen to the baIlot. (n. 83-84) He did not know a

thing about the ballot. (n. 85)

On cross-examination he stated that he signed, docu-

ments by making a cross mark. (n. 85) Furthermore, he

had no i n absentee ballot was. (R. 87)

a registered voter in Pickens County,

AIa that Appellant brought her an application

for an absentee ballot. Mrs. Billups could. neither read

nor write and could only sign by making a cross mark. (n.

91-94). She further stated that Appellant was doing the

voting and t llant signed her name. (n. 94-96, 380)

registered voter in Pickens County,

test

10r )

she applied for an absentee ballot. (R. 99-

rt Goines--

Arr6ie Billups,

, testiji

tie Gipson,

She could not write, nor could she read. very welI.

-6-



Pi

When shown a ballot purporting to have her signature on

.it, she could not find where she had made an rrxt'. (n.

p. I02)

As far as she could recalI, she had voted. in person

by going to the National Guard Armory. (n. 
.IO2)

'. On cross-examination she stated that she did not

know what an absentee ballot was. (R. I04)

an eighty-year-old registered voter in
no idea what an absentee ballot was

and had never voted absentee. (n. 106) Although Appe1lant

was shown as the witness to Mrs. Spannrs absentee applica-

tion (R. p. 430) she had, never talked to Appellant and did

not know her. (R. I07) Moreover, someone had, misspelled

Mrs. Spann's name on the application and the witness

stated that she did not spel} her name as was shown there.
When Mrs. Spann attempted to vote, she was told that

someone had already voted absentee for her. (n. 112)

Mrs. Spann could read and write and demonstrated this in
court. (n. 115) However, on the application for absentee

ballot an rrxrr had been marked in place of a signature.

'eight,y-seven years old, stated that he was

then said,

(R. p. I20-

red to vote in Pickens County. He

Nat Dancy,

however, that he had voted in Pickens County.

-7-



I21) Moreover, he stated that since he could neither

read, nor write, he wasnrt responsible for the way he

voted, because he would do as he was told to do. (n.

p. 121) Appellant told him to make his mark on a piece

of paper but in no way explained to him what the paper

was. (n. L23)

When asked, if he had marked a ballot, Dancy

recalr doing so and asked how could he have done

p. L24l Dan.cy did not sign the ballot himself .

p. 387 for a ballot signed with Dancy's name).

did not

so. (R.

(See R-

registered voter in Pickens County,
'u1d not write. (R. p. 129-131)

Appellant contacted her about applying for an absentee

baIlot; however, Appellant never brought a ballot to

her house. (n. p. I33) Iloweverr on the ballot her name

was sl R. p.402\

Lelqlq Mifro-Y testified that he was registered to vote

in Pi nty and voted in the 1978 election. (n. p. I39)

He could neither read nor write (R. p. 140) and signed his

namei with an rrxrr. Minor told Appellant she could. vote

for him but he never personally saw the ballot and he

did not mark the votes on the ballot. (n. p. L42)

Lucille Harris/testified that Appellant came to see

also told

testified tlE

her once and brought a paper for her to sign; she

-8-



l,lrs. Harris she "didn't have to go uP." (R. p. 144-145)

Mrs. Harris did not recall receiving a ballot in the mail.

was registered to vote in Pickens

'untffi3@6ber, 1978. (n. p. Is0-151)

she stated that she could not read or write and. that

she used an trxrr to mark her signature- She applied, for

an absentee ballot at Appellantrs prompting- (R- 152)

When shown Stater s Exhibit 2 the witness said that that

was not her signature on the ballot because she could not

write. (R. P. 154)

On redirect examination the witness said she had not

authorized anyone to fill in her ballot, nor had she

cornpleted the ballot herself . (R. p. 160)

tated that Appellant got her to sign

p.161-162)

the witness

upon having her memory refreshed the witness recalled

she had never received a ballot and thus never signed

(n. 166-167)
-C1emie Wells, a\egistered voter in Pickens County,

stated -could read and write and that she had

applied for an absentee ballot. (R. p- 170-171) At the

Staters request she gave a writing exemplar- (R- p- 4621

an application for an absentee ballot- (n-

Appellant brought a ballot to her whereupon

voted and gave the ballot back to Appellant-

-9-



The witness was unable to identify Staters Exhibit 38,

which was the ba1lot purportedly signed by her (R. p.

L72, 4L7l; she further stated that the signature

a regist,ered voter, applied for an

(R. L79-181). Ilowever, she never

received a ballot in the mail and the signature on Statets

Exhibil I1 was not her own. (n. p. 181, 439) She further
testified that she had, not marked the boxes on the ballot
she was supposed to have signed (n. p. 181); moreover,

she had not voted at aII in 1978 because her husband was

sick. (R. p. 182)

On cross-examination the witness stated that Appellant

told her that she "would fix the paper" for Mrs. Deloach.

absen

had

(R. p. 181

he was no

read or write and did not know how old

When Appellant stopped by to see him he

was giving hj-m a form on which to vote

in September of L97B

I88) He could not

he was. (R. p. IBB)

believed that she

for a wet/dry

Appellant to signIB9) He told

his n for him.

LUW Deloach

aul RoIli-ns was called to clear up exactly when

-10-



he had been in Pickens County to notarize balIots.

The State then rested its case.

Thereafter defense counsel moved to exclude the

Staters evidence for failure to prove a prima facie case.

(R. p. 220) Said motion was denied.

The defense began its case by calling Appe1lant to

the witne and.

tified that she was 66 years old and

could read and write a little. (R. 22L) She, Mattie Lou

Grice and Minnie Hill Inere actively involved in helping

people vote by absentee ballot. (R. p. 223'224) Appel-

lant's address was 601 10th Avenue, N.W.; Ms. Grice lived

at Route 2, Box P-318, Carrolltoni and Ms. Hill lived at

532 10th Avenue, N.W. (R. p. 2241

She further denied marking any ballots contrary to

the way a voter instructed her to (R. P. 23Ol i she also

denied delivering to the Circuit Clerk any absentee ballots

that came into her headquarters' (n. 233)

Although Appellant stated that everyone told her they

wanted to vote for the Democrats, as it t,urned. out, every-

one on the primary ballot was a Democrat. (R. 248)

s. Wilder

-11-



ARGUMENT

WHETHER CODE OF ALABAMA L975, SECTION
<

17-2:-T S CONSTITUTiOI$ALLY SOUND?

The Appellant contends that code o{ Alabar.na 1975,

section L7-23-L is so vague, indefinite and uncertain

as to offend both the Alabama and the United States

Constitutions. That seetion provides:

Any Person who votes more than once
at anY election held in this state,
or dePosits more than one ballot
for the same office as his vote
when he is not entitled to do sor
or is guiltY of anY kind of illegal
or fraudulent voting, mustr o[ con-
viction, be imprisoned in the peniteniary
for not less than two nor more than
five Years, at the discretion of the
jury

However, the State submits that this assertion is

utterly without merit and therefore Appellant's conviction

thereunder must stand

At the outset the state would dispute Appellant's

contention that there was no evidence introduced at trial

which would indicate that AppeIlant attempted' to vote more

than once or to deposit more than one ballot as her own'

From this erroneous assumption Appellant goes on to con-

clude that if this be sor then the examination of the

-L2-



constitutionality of the statute must logically focus on

the }ast phrase of the statute which proscribes "any kind

of illegal or fraudulent voting."

To the contrary, even the most casual perusal of

the transcript unmistakably shows that Appel.lant was

indici,ed under the first two provisions of the statute

toivoiing more than once at any election or depositing
,. : :
more Enan one ballot for the same office as her vote

when she was not entitled to do so. (n. p. 320-32I)

Moreover, from the great weight of the evidence

same office as her vote, or knowingly attempting to vote

when she was not entitled. to, then nothing wou}d. Hence,

the fallacy of Appellant's argument that tire only portion

of the statute relevant to her is the portion forbidding

illegal or fraudulent voting is apparent-

activity consisted of soliciting illiterate or disabled'

registered voters to fill out absentee ballot applications,

traving tfre Uittots mailed to her address, then voting

the ballots for the candidates Appellant wanted in office

and forging the signatures of those who had originally

adduced at trial f,t ,.= clear tha
l-

;ppIi"d f;r the ba1lot . ltf this does not amount to voting

more than once or dep'crslting more than one ballot for the

Ilant's criminal

-r3-



Given then the fact that this Court must consider

the statute in its entirety rather than in piecemeal

fashionr we look to the case law in evaluating the

constitutionality of the Iaw.

The United States Supreme Court i.n Rabe v. Washington,

405 U.S, 313, 92 S.Ct. 993 (1973) defined the minimum

standard for statutory clarity as follows I

To avoid the constitutional vice of
vagueness it is necessary at a
minimum, that a statute give fair
notice that certain conduct is
proscribed.

The Appellant would have us believe that a statute for-
bidding voting more than once in an elecLion is so vague

that she did not know it was against the law to fill out

a large number of absentee ballots 
@" 

an" signatures

of registered voters, then return the forged ballots to
, 

-.1the Office of the Pickens County Circuit Clerk. / tf this
be so, then the question which logically comes to mind is,
if Appellant did not know and could not have known her

behavior was of a criminal nature, then why did she try
to cover up her action by signing the name of other

registered voters on the ballots? If she truly believed

that it was permissible to vote more than once in the

election, then surely she would have signed her own name

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to each of the thirty-odd ballots. However, she did

attempt to hide what she was doing for the very reason

that it is clear from the statute that her conduct was

of a criminal nature. Hence, the argument that she

could not ascertain from the statute what type of

activity was prohibited is a hard one to swallow.

Moreover, the trier of fact did, not find, Section

L7-23-L difficult to understand or administer, for from

the evidence it clearly appeared that Appellant had voted

more than once. The intent of the statute is clear -
each registered voter is to have only one vote per

election so that all registered voters have an equal

voice in the outcome. Were multiple votes per citizen

to be allowed, then clearly the majority rule would

disappear only to be replaced by the minority who could

putl the levers the most times on election day. Surely

such a spectacle has no plq

thermore ,7{n Rbwan v. United States Post Otfice

484 (1970) it was

that a statute is fatally vague only when it exposes

a potential actor to some risk or detriment without

giving him adequate warning of the nature of the proscribed

conduct. Clearly the statute at issue merely codifies

the well known fact that a person cannot skew an election

artment,

-15-



purportedly based on the idea of one person, one vote.

Furthermore, while Appellant cites Bol-in v. State,

266 AIa. 256, 96 So.2d 582 (1957) and Standard OiI v. State,

178 AIa. 400, 59 So. 667 (1912), it is clear that these cases

cannot be read so as to merit a finding that Section 17-23-1

is void for vagueness

Bo1in, supra, concerned a statute which in its
practi,cal application forbade the possession of many beneficial

materials used by industryand agriculture merely because such

materials, if combined with certain other ingredients, might

be commonly used or necessary in the making of a "stink bomb".

Moreover, Standard OiI v. State, supra, merely

reaffirmed that the court will seek out and adopt any

reasonable construction of which a statute is susceptible,

rather than nullify it on the ground of uncertainty.

not dispositive of the issue, in

t9, 3 Div. 115 (l,ts.Op. Dec. 4, L979)

that the number of years the statute has

been in effect is a relevant factor to be considered when

evaluating a void for vagueness argument. Hencer ds in that
case, there is "doubt that there are any...statutorily defined

crimes that can be more readily und.erstood by reasonable people

than the one now under consideration, the o1d, the young, the

rich or the poor, the learned ar,rd the unlearned, wherever

they may be.

rry Glenn HilI

-16-



Based on the foregoing, the State submits that

Section L7-23-L is not unconstitutionally vague and hence,

Appellant's conviction must stand.

II

WHETHER THE II{DICTMENT AGAINST APPELLANT
WAS DEFICIENT?

Appellant makes a two-pronged argument concerning the

validity of the indictment against her. It is first

argued that the statute in question fails to set forth

the elements of the crime and hence, to merely follow

the language of the statute was not sufficient to give

notice of what she was called upon to defend.

Appellant then shifts to the argument that "the

indictment. . .charges disjunctively that Appe1lant did

vote more than oncer or deposit more than one ballot for

the same office as her ownr or did vote illegally or

fraudulently." (Appellant's Brief, p. 28) It is then

argued that the last alternative, "did vote illegally or
fraudulently" faj.ls to state an offense as required under

Code of Alabama L975, Section 15-B-25.

The indictment under which Appe1lant was tried

charges that Appellant:

-L7-



COUNf O\IE

did vote more than oncer or did deposit more than
one ballot for the same office as her vote, or did
vote illegally or fraudulently, in the Democratic

. Primary Run-off Election of September 26, L9?9,

COUNT .IIVO

did vote more than once as an absentee'voter,
or did deposit more than one absentee ballot for
the same office or offices as her vote, or did
cast illega1 or fraudulent absentee ballots, in
the Democratic Primary Run-off Election of
September 26, L978,

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 Circuit Clerk, absentee ballots
which were fraudulent and which she knew to be
fraudulent, against the peace and dignity of the
Stare of Alabama. (n. p. 320-321)

At the outset the State submits that read in its
entirety the statute does indeed set out the erements of
the offense, Appellantts contention to the contrary
notwithstanding. one of the elements consists of casting
rnore than one vote in the same electioni another element

of the offense consists of depositing more than one barrot
for the same office as one's own vote when not entitled.
to do so.

However" more important than the fact that the elements

of the offense are clear to the fact that from the indict-
ment itself it is evident that each alternative count of

-1 B-



the indictment was sufficiently detailed, so as to identify

the accusations, enable Appellant to prepare her defense,

to foreclose the possibility of being placed in jeopardy

for the same offense'and to enable the court after con-

viction to pronounce judgment on the record.

By way of example, Count One informed Appe1lant of

the date of the election in which she was suspected of

fra"d.. fur:ther identified it as being a run-off election,

and was even more specific in stating that it was a

primary for the Democratic party

Likewise, Count Two notified her that she was sus-

pected of having committed the crime by means of absentee

ba1lot and again specified the date, the fact that it was

a run-off election and the fact that it was a primary

for the Democratic party.

Count Three, the count attacked by Appellant, is as

specific, if not more sor as the preceding two counts in

that Appellant was notified that the suspected criminal

activity consisted of casting l,liegit)absentee ballots.

Thus, she was again warned of( the fact that absentee

ballots were invoLved; that it was a run-off election;

that it was a primary for the Democratic party; that said

run-off occurred on September 26, 1978; that the fraudulent

votes were deposited with the Pickens County Clerk; and

-19-



finally, Appellant was on notice that the State was pre-

pared to prove that Appellant intend,ed to cast the ballots

despite the fact that she knew them to be fraudulent.

f'rom the foregoing it is obvious that the special

plea filed by Appellant in which the indictment was

attacked was properly refused, by the trial court.

which

shows

Moreover, while Appellant cites a number of cases

are purported to be in her favor, a careful reading

that none of it reversal.

For examp a.Cr.App., 301 So.2d

286 LL974) , mere :established constitu-

tional principl{ that an indictment must not only state

the elements of the offense but must also identify with

a sufficient degree of particularity the transaction to

which the indictment relates as to p1ace, persons, things

and other details. In other word.s, the accused must be

able to reasonably understand not only the nature of the

offense but the partj ar a\t or acts touching which he

must be prepared+6jl-th his p

, AIa.Cr.App., 344 So.2d 533Moreover{, Andrews v. Sta

(L977) , cert. dqnied, AIa. 8 So.2d 538 (.L977) is also

inappli-cable because it dealt specifically with an assault

indictment which fatally lacke<l the name of the assault

victim. Delvj-ng into English legal history the court

found that since the year L597, naming the victim of an

e v. State, A

states the

-20-



assault had been essential to a valid indictment at

conrmon law.

Eurther, Donahey v. City of l,lonlgomery, 43 AIa-App- 20,

178 So.2o 832, cert. denied, Ala., 178 So.2d 837 (1965) is

distinguishable in that the accused was indicted for

listurbing the peace of others by violent, profane,

indecent, offensive conduct but was never informed. of

jusL whose peace he was supposed to have disturbed or

what act he had committed to disturb the peace. Certainly,

Appe}lant could not claim surprise or ignorance, however,

and her case in no way aPproaches Donahea, suB

Moreover, while Appellant relies

AIa.Cr.App. , 364 So.2d. 4L6, cert. de

420 (1978), that case stands for the proposition that

vagueness challenges to statutes which do not involve

First Amendment freedoms must be examined in light of the

facts of the case at hand. More importantly, the court

went on to fincl that Appellant had been given sufficient

notice of the charges s s to face.

lvloreover, Ia. Cr.App. , 348 So.2d 547

unlawfully(1977) , deals indictment for

obtaining drugs and

circumstances be set

requires that the time, Place and,

out with particularity.

-p-Chambers v. State,

AIa. , 354

our{q v. State,

-2L-



I buldin v. State,Finally,
(1965), rhe

overruled,

Hence,

has shown.no

from the foregoing it is

reversible error in the

d. r L79 So.2d

nt was held properly

plain that Appellant

ind.ictment.

III

WHETIIER THE STATE PRODUCED SUFEICIENT
EVIDENCE TO SUPPORT APPELLANT I S COI{VICTTON?

The Appe1lant argues that the evidence was insufficient

to support her conviction.

However, the State submits that this contention is

totally without merit.

Witness after witness attested to Appellantr s

criminal behavior. Robert Goinesr ErI elderly, illiterate

man, testified that while he had applied for an absentee

ballot at Appellant's suggestion he did not fill out the

actual ballot; it further appeared that someone hao placed

a forged signature on the baIlot. (R. p. 83-84, 392,

f'urther, Goines did not even know what an absentee balIot

was. (n. p. BB)

Annie Bil1ups, also illiterate, testified, that Appel-

lant brought her an application for absentee baIIot. (R. p.

9L-92) lrlhen tire application came, Appellant signed,

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Mrs. Billups' name and did the voting. (n. p. 94-96)

on cross-examination Mrs. lliIlups denied that bhe signed

balfot was.- (R. p. 98, 380)

Mattie Gipsonr/ also elderly and itliterate, testified.
that for an absentee bailot. She further
stated that she had voted in person at the election. (R.

p. 102) She also had no idea what an absentee ballot was.

(n. p. 104) I{hen shown a ballot purporting to have her

signature on it, she could not find where she had made

an I'Xrr . (n-;-p:-{02 )

\
/Sophia Spann testified that she had no idea what anL-----:--l

absentee ballot was and she had never voted absentee.

(n. p. 106) Although Mrs. Spann's signature was marked

by an rrxrr and Appellant was shown as the witness, I4rs.

Spann always signed her name by writing it out and did
not know Appellant. (R. p. 107) AIso, Mrs. Spannts name

had been spelled incorrectly. (n. p. 107) When l4rs.

Spann attempted to vote she was told that she had already

voted by absentee ballot. (n. p. 1I2) Mrs. Spann informed

the erection officiars that she didn't know anything about

any absentee balrot. (R. p. LL2) Mrs. spann d,emonstrated.

in court e could read and write. (n. p. 1I5, 430)
)

i'{at Dancyr T'a1so illiterate and eld.erly, stated that
responsible for the way he voted because he

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would do as he was told to do. (R. p. 12I) Appellant'

told him to make his mark on a piece of paper but in no

way explained to him the significance of what he was

doing. (n. p. 123)

When asked if he had marked a ballot Dancy did not.

recall doing so and asked how could hs have done so. (R.

p. L24l Dancy did not sign the ballot himself. (R. p.

387) .

Mamie Lavender also illiterate. Appellant

t applying for an absentee ballot but

never delivered the ballot to her house. (n. p. 133)

Howeverr on the{allot her name was signed. (R. 402)
-/-- \
Lewis llinorr/ also illiterate, told Appellant she

coul

and

v6'Ee-lEor him but Minor had never seen the ballot

certainly had not marked his signature to it. (R.

p. L4L-L42\
/,'-\ -"--\
fucille Uarfis stated that Appell-ant came by her\------------

house once and brought a paper for her to sign. Mrs.

Harris never received a ballot after that. (R. p. L44-

145) She also testified that she could, sign her name

but she never marked or signed an absentee baIIot.

that she applied, for an

prompting. (n. p. 152)

essie Billups) testified

absentee ballot at Appellantrs

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When shown Staters Exhibit 2 the witness declared that
was not her signature because she could not write her

name. (n. p. I54) Moreover, she did not complete the

bal-Iot, nor had she authorized'anyone else to do so.

(R. p. 16 0)

Fronnie Rice tated that at

it

applied for an a sentee ballot.

tion refreshed, she stated that

ballot and thus had never voted

p. 166-167)

Appellant's request she

Upon having her recollec-

she had never received a

an absentee ballot. (n.

./"'1.(cfLmmi6 welts \pplied for an absentee ballot but
\l

could iEE-raAEdan" ballot purportedry signed by her.

(n. p. L72, 4L7, She further stated that atthough she

could read and write the signature appearing thereon was

not hers. : p. 173)

Lula Deloach a)pplied for an absentee ballot but never

hai1. (R. p. 180-181) She testified
that the signature on Staters Exhibit 11 vzas not hers.

(n. p. 181, 439) She further stated that she had not

marked the boxes on the ballot and that she had not voted

at all during 1978 because her husband was sick. (n. p.

182) On cross-examination she testified that Appellant

told her she would "fix the paper" for her. (n. p- 183)

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Finallyl Qharle-s Cunninghad stated that he was

illiterate and did not know how old he was. (R. p. I88)

When Appellant came by his residence he believed tirat she

was giving him a form on which he would vote j-n a wet/d.ry

election. (n. p. 189) He tol,ct her to sign his name

for him. (See also R. p. 385)

From the foregoing recitaticn of evidence the State

submits that the evidence was sufficient to support

Appellant's conviction. ITierrea as a whole1,ppellant'sL
actions showed a systematic scheme of going to elderly

registered voters, many of whom could neither read nor

write, having them apply for absentee ballots which were

sent to Appellantrs address, after which point most of

the voters never saw the ballots sent in their name))
Furthermore, in many instances Appellant never

bothered to find. out which of the voters could write

their names, for many of the Staters exhibits show a

written signature wiren the voter could only make an "X".

Also, the exhibits show such a difference in handwriting

for supposedly the same person that even a child could

determine that a forgery had been committed.

The evidence clearly shows that Appellant was trying

to elect the candidates endorsed by the Alabama Democrati-c

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/'
Conference. However, /it appears that she was casting

t-

multipte ballots without first consulting each voter

as to how he or she wished to vote.[r."t1y this action
,-

constituted voter fraud of the most blatant fo*.f
-/

IV

WHETHER PREJUDICIAL ERROR OCCURRED IN
TiIE PROSECUTIOI{I S CLOSING ARGUIIIENT?

Appellant contends the prosecution committed reversible

error in stating that he had another case to try involving

a black man who was kiIled. (n. p. 304)

However, read in context the State submits that no

reversible error occurred.

In the first place, Appellantrs closing argument

conlained i.nstance after instance of racial references

which attempted to show that a black person had little

chance of receiving a farr verdict from a white jury in

Pickens County, Alabama. (R. p. 273, 276, 2Bl, 283, 284,

285, 286, 287, 289.\ Read as a whole defense counsel's

argument tried to make it appear that Appellant was

indicted and tried because of her race.

However, the State submits that the prosecution was

only replying in kind and assuring the jury that the

murderer of a black man would be just as surely brought to
justice as the murderer of a white person.

{
a

-27-



Moreover, the trial court prevented any prejudice

by sustaining an apparent objection to the remark so

that the prosecution did not continue in that vein

(R. p. 304) Furthermore, fron the record it does r,ot

appear that Appellant moved to exclude the statement.

Hence it would appear that defense counsel was satisfied.

that no real harm occurred

V

WHETIIER THE COURT I S ORAL CHARGE WAS
IMPARTIAL?

r Appellant contends that the court gave a one-sided,

. jury charge in favor of the State.

However, the State submits that the Court was simply

going over. the indictment with the jury step by step to

ensure that they understood each and every element of

the crime with which Appellant was charged.

I{owever, most importantly, the Court properly prefaced

and ended the elements portion by emphasizing that it was

the State who had the burden of proving each element

beyond a reasonable doubt. (R. p. 306-313)

Most importantly it should be noted that while Appel-

lant did object to the alleged "imbalance" of the charge,

no charges were offered by defense counsel. (R. p. 315-

316 )

' Hence no reversible error has been shown.

:

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The State prays

will be affirmed.

CONCLUSION

that the lower court conviction

Respectfully submitted,

t'\

,
I

a

ATTORNEY GENERAL

,-..":L;v-t1
WILL

ISTAIIT ATTORNEY GEIIERAL

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)
a

t

,
a
o

t' t

J

a
a

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I
I

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i

CERTIT@

r hereby certify that on this 'n" 
I At day of

JuIy, I did serve a copy of the foregoing Brief and

Argrunent on aLtorney for Appellant' bY rnailing said

copy t,o him, postage prepaid and properly addressed

as follows 
r seay' Jr'Ilonorable Solomon

ct"vlTEiv ! r.,algford
352-Dexter Avenue
Mo"tIEil"i-Y''-ei"r"*" 36r04

ADDRESS OF COTINSEL:

office of the Attorney-General
;;o-;d*ini"ttttive Bui lding
Zi-lr"tth Union Street
ill"ii-"."tv, Alabama 36130

I

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