Baldwin v. Alabama Brief for the Petitioner

    No. 84-5743

IN THE

Supreme Court of tfje (Hmteti States
October Term, 1984

Brian Keith Baldwin,
Petitioner,

v.
State of Alabama,

Respondent.

On Writ Of Certiorari To The 
Supreme Court Of Alabama

BRIEF FOR THE PETITIONER

John L. Carroll 
322 Alabama Street 
P.0. 5042
Montgomery, AL 36103 
205/263-7364 

Counsel of Record
Roger Appell 

200 First Avenue, North 
Brown Marx Towers 
Birmingham, AL 35203 

Attorneys For Petitioner

PRESS OF RAM PRINTING. HYATTSVIU.E, M0 20781 (301) 864-6662



i

q u e s t io n  p r e s e n t e d

1 Whether petitioner’s death sentence deprives him 
Of life Without due process of law, or den ed h.m equa 
protection of the laws or constitutes cruel and unusual 
punishment or violates his Sixth Amendment nghU 
since the trial court was required by Alabama law to 
consider the jury’s constitutionally invalid mandatory 
death sentence in the sentencing d e te rm in a te



11

TABLE OF CONTENTS
Page

Question Pr esen ted ............................................................  i
Table of A uthorities..........................................................  iii
Statement of the Case ......................................................  1
Summary of A rgument........................................................  4
A rgument.................................................................................  5

I. The A labama Capital S entencing Scheme Which 
Requires The S entencing Judge to Consider An 
U nguided A nd Standardless Mandatory J ury 
S entence of D eath As A Factor in Determining 
Whether A Defendant Should Live or Die Is 
Facially Invalid When Measured by The Stand- 
ardsofThe E ighth And Fourteenth Amendments 
to The Constitution of The U nited States. . . .  7
A. The Mandatory Jury Sentence Of Death Which 

The Statute Requires Be Imposed As A Pre- 
Requisite to Sentencing Is Unguided, Stan­
dardless, Reflects A Blurred Consideration Of 
Guilt/Innocence And Sentencing Concerns,
And Is A Constitutionally Impermissible Fac­
tor For Determining Sentence....................... 7

B. The Alabama Death Penalty Statute Requires
The Sentencing Judge To Weigh The Con­
stitutionally Impermissible Sentence Of Death 
Along With Tne Other Aggravating And 
Mitigating Circumstances, Thus Creating A 
Capital Sentencing Scheme Which Violates The 
Eighth And Fourteenth Amendments...........  12

C. The Unconstitutionality Of Petitioner’s Death
Sentence Is Not Altered By The Fact That The 
Alabama Appellate Courts May Have Also 
Weighed The Aggravating And Mitigating Cir­
cumstances....................................................  17

Conclusion ............................................................................. 19

in

TABLE OF AUTHORITIES
Cases: Pages:
Baldwin v. State, 372 So.2d 26 (Ala.Cr.App. 1978) . . .  3
Baldwin v. State, 372 So.2d 32 (Ala. 1979)................  3
Baldwin v. Alabama, 448 U.S. 903 (1980) .................  3
Baldwin v. State, 405 So.2d 699 (Ala.Cr.App. 1981) .. 3
Baldwin v. State, No. 1, Div. 901 (Ala.Cr.App., Nov. 1,

1983) ...................................................................  4
Baldwin v. State, No. 83-276 (Ala. July 13, 1984) . . . .  4, 13
Barclay v. Florida, ___  U.S. -----, 77 L.Ed.2d 1134

(1983)...................................................................  17
Beck v. Alabama, 447 U.S. 625 (1980)...................  1, 3, 5
Beck v. State, 396 So.2d 645 (Ala. 1980) ..................... 6
Eddings v. Oklahoma, 455 U.S. 104 (1982) ................. 8
Furman v. Georgia, 408 U.S. 238 (1972) ...................  5, 8
Gregg v. Geoigia, 428 U.S. 153 (1976) .................  7, 8, 10
Hopper v. Evans, 456 U.S. 605 (1982)........................  3
Jurek v. Texas, 428 U.S. 262 (1976)...........................  9
Lockett v. Ohio, 438 U.S. 586 (1978)..................... 3, 8, 16
Powell v. Alabama, 287 U.S. 45 (1932)......................  8
Proffitt v. Florida, 428 U.S. 242 (1976)........................  14
Ritter v. Smith, 726 F.2d 1505 (11th Cir. 1984)......... 6, 12
Roberts v. Louisiana, 428 U.S. 325 (1976).................  4, 9
Wainwright v. Goode,-----U.S. ------, 78 L.Ed.2d 187

(1983)...................................................................  17
Witherspoon v. Illinois, 391 U.S. 510 (1968) ..........  13, 16
Woodson v. North Carolina, 428 U.S. 280

(1976) ..................................................  4, 9, 10, 11, 16
Zant v. Stephens,___ U.S.------, 77 L.Ed.2d 235

(1983) ............ ............................................  5, 17, 18

Statutes:
Ala. Code § 13112(a) (Repealed 1981) ......................  5
Ala. Code § 13-11-4 (Repealed 1981)..........................6, 12
Ala. Code § 13-11-9 (1975)...........................................  5
Ala. Code § 13A-5-40 et seq. (1981) ............................ 7



STATEMENT OF THE CASE

Petitioner was tried, convicted and sentenced to death 
under Alabama’s post-Furman' pre-Gregg* death penalty 
statute which was the subject of this court’s opinion in 
Beck v. Alabama, 447 U.S. 625 (1980).

The trial lasted two days and the principal evidence 
against petitioner was in the form of statements made by 
him to various law enforcement officers. He testified 
during hearings to determine the voluntariness of those 
statements that he was beaten and threatened by those 
law enforcement officers prior to the giving of those state­
ments.

The evidence adduced at trial tended to show that 
petitioner and his co-defendant, Edward Horsley, 
escaped from a prison camp in North Carolina. While in 
the process of escape, they were picked up by a sixteen- 
year-old girl named Naomi Rolon. Petitioner and Mr. 
Horsley took control of Ms. Rolon’s car and drove it from 
North Carolina through Atlanta to Camden, Alabama 
with Ms. Rolon in the trunk of her car. In Camden, 
petitioner, according to the evidence presented, stole a 
pickup truck which contained a hatchet. Horsley and 
petitioner then drove in separate vehicles to a secluded 
spot in Monroe County, Alabama where Ms. Rolon was 
removed from the car. Horsley ran into Ms. Rolon with 
her car, and petitioner is alleged to have struck her with a 
hatchet inflicting a fatal wound. Horsley and Baldwin 
were then arrested in Lanett, Alabama and eventually 
returned to Monroe County for trial. '

• Furman v. Georgia, 408 U.S. 238 (1972).
2 Gregg v. Georgia, 428 U.S. 153 (1976).
'This statement of facts parallels the facts referenced by the 

Alabama appellate courts in their opinions. The most recent opinions 
appear in the Joint Appendix, pp. 20 to 61 .

2

At the close of the prosecution’s case, the defense 
rested without putting on any evidence. The jury found 
the petitioner guilty and returned the verdict which the 
law required:

We, the jury find the defendant guilty as charged in 
the indictment and fix his punishment at death by 
electrocution.

(J.A. 4).
On September 9, 1977, the trial judge held a post-jury 

verdict sentencing hearing. Prior to the presentation of 
mitigating evidence, the following exchange took place 
between the court and petitioner’s counsel.

THE COURT: Mr. Owens [trial counsel for the peti­
tioner], do you have any mitigating circumstances 
which you would like to offer to the court at this time.
MR. OWENS: Judge, I think perhaps I ought to in 
view of the situation—put the cfefendant on the stand 
and see if I can elicit any mitigating facts from him 1 
don’t have any particular thing in mind, but 1 ought 
to give him an opportunity to give any circumstances 
that might be of benefit to him, and I think that the 
only way to do that is to put him on the stand.

(J.A. 7).
Petitioner then testified. His testimony established 

that he came from an extremely difficult family situation 
He was forced from his home at the age of thirteen and 
then made a living “hustling on the street.’’ (J.A. 8). He 
dropped out of school after finishing the ninth grade. 
While in prison he became addicted to drugs, and his 
testimony clearly indicated the strong possibility that he 
was on drugs at the time of the commission of this offense. 
(J A 10-11). He also established during the post-verdict 
hearing that he was 18-years-old at the time Ms. Rolon 
was killed.



3

Immediately following the hearing, the c0Û  ^eI? 
enced petitioner to death. In so doing he scented the 
death penalty as fixed by the jury. (J.A. 18). The sole 
mitigating circumstance found by the court was petitio - 
™s age. It is plain from the record, however, that the 
trial court understood its consideration of mitigating cir 
cumstances to be limited to those enumerated in the 
statute, thus making petitioner’s death sentence uncon­
stitutional when measured by <the provisions o f t h »  
court’s decision in Lockett v. Ohio, 438 U. .

The Alabama Court of Criminal Appeals affirmed[ peti­
tioner’s conviction and death sentence m Baldwin . . 
State, 372 So.2d 26 (Ala. Cr.App. 1978). T h a t  deasion 
was then affirmed by the Alabama Supreme Court. Bald 
win v. State, 372 So.2d 32 (Ala. 1979).

In 1980 this Court vacated the decision of the Alabama 
S u p r e m e  Court and remanded the c ^ e  to * for further 
consideration in light of Beck U.S. KB
(1980) Baldwin v. Alabama, 448 U.S. 903 (1980). 1 
Alabama Supreme Court then remanded the case to the
Court o f Criminal Appeals. Follow ing rem and m ent^ he
Court of Criminal Appeals initially reversed petitioner s

1981). Subsequent to that decision this ^  * d  
opinion in Hopper v. Evans, 456 U.S. 605 
Court of Criminal Appeals then granted the sta tes

" T ^ i t i g a t i n g  eviflence presented by petitioner concerned his 
troubled youth and4 *  addicfion under which peti-

S iS S iS rS E i:
sidered, and the tnai cou As a result, there was no

4

rehearing application, rescinded its prior opinion and

1983). _  .
On July 13 1984, the Alabama Supreme Court affirmed

the decision ’of the' Court of Criminal * * £ > % £ £ *  
netitioner’s conviction and sentence of death. Baidu m .
I f  n, Nn 89 276 (Ala. July 13,1984). The application fol State, No. 83 \ , n, iqh4 A timely peti-rehearine was denied on August 24, 1984. a  umeiy i

for writ of certiorari was granted on December 10, 
1984.

SUMMARY OF ARGUMENT
The Alabama death penalty law under which petitioner

sentences such as those . „ >,80 (197r) ami
Waachnn v North Carolina, 428 U.t>. /
R obZs y Louisiana, 428 U.S. 325(1976). IUsungurfed 
rtandardless and reflects a blurred consideration of gu.lt/ 
innocence and sentence.

The statute then specifically reM uirestfoitmljudge,
, . fi Rnoi sentencing authority, to take

F rS S S S S S
the jury (emphasis added) m making



5

determination. Ala. Code, § 13-11-4 (Repealed 1981). The 
statute thus injects a constitutionally impermissible and 
totally irrelevant consideration into the capital sentenc­
ing process which infects the entire process and which 
requires that petitioner’s death sentence be set aside.
Zant v. Stephens,___ U .S .------ , 77 L.Ed.2d 235, 255
(1983).

ARGUMENT

The Alabama death penalty statute under which peti­
tioner was convicted and sentenced to death was enacted 
by the Alabama State Legislature in 1975. Ala. Code 
§ 13-11-9 (1975). The legislature was acting in response to 
this Court’s decision in Furman v. Georgia, 408 U.S. 238 
(1972), which had struck down a state statute that permit­
ted the death penalty to be imposed without proper guid­
ance to channel sentencing discretion. However, the Ala­
bama death penalty statute was enacted before the im­
portant series of decisions rendered by this Court in 1976 
which helped to clarify the constitutional standards appli­
cable to statutes authorizing capital punishment. The 
1975 Alabama statute, passed as it was without this 
Court’s guidance, is unique and demonstrably unconstitu­
tional.

The 1975 Alabama death penalty statute’s sentencing 
provisions provide that if the jury finds a defendant guilty 
of a capital offense it shall fix the punishment at death. 
Ala. Code § 13-ll-2(a) (repealed 1981). The sentence of 
death is mandatory, and the jury can return no other 
sentence. Although the statute provides for another 
sentencing hearing in front of the trial judge, the jury is 
not informed that is is not the final sentencing authority. 
It is thus led to believe that its sentence will be final. Beck 
v. Alabama, 447 U.S. 625, 639 n.15 (1980).

6

Once a defendant is convicted of a capital offense and 
automatically sentenced to death by the jury, the trial 
judge is required to hold a separate sentencing hearing at 
which he is to consider evidence in aggravation and 
mitigation. The trial judge then determines whether to 
sentence the defendant to death or life imprisonment 
without the possibility of parole. In the language of the 
statute, “[AJfter weighing the aggravating and mitigat­
ing circumstances, [the court] may refuse to accept the 
death penalty as fixed by the jury and sentence the de­
fendant to life imprisonment without parole.” Or “[t]he 
court, after weighing the aggravating and mitigating cir­
cumstances, and the fixing of the punishment at death by 
the jury, may accordingly sentence the defendant to 
death.” Ala. Code § 13-11-4 (Repealed 1981). As the plain 
language of the statute makes clear, the trial judge in 
sentencing is required to take into account the pi eviously 
announced mandatory jury sentence of death. This 
requirement, that the judge weigh a mandatory juiy 
sentence that is unguided and standardless infects the 
1975 Alabama capital sentencing scheme with fatal con­
stitutional invalidity.

The statute’s obvious flaws are underscored by the fact 
that the statute is no longer in use. Following this court’s 
decision in Beck v. Alabama, the statute now before this 
Court was completely rewritten by the Alabama Su­
preme Court to eliminate the jury’s mandatory sentence 
of death and to provide for a bifurcated trial wherein the 
jury hears evidence relating to aggravating ciicum- 
stances before reaching its sentencing decision. See Beck 
v. State, 396 So.2d 645 (Ala. 1980).’ Then in 1981, the

5 In addition, the sentencing provisions of the 1975 law were de­
clared unconstitutional by the United States Court of Appeals for the 
Eleventh Circuit in Ritter v. Smith, 72B F.2d 1505 (11th Cir. 1984).



7

Alabama legislature enacted an entirely new statute 
which repealed the 1975 law and incorporated the fea­
tures of statutes which this court has previously ap­
proved. See Ala. Code § 13A-5-40 et seq. (1981).

I.
THF AI ABAMA CAPITAL SENTENCING SCHEME WHICH 
REQUIRES THE SENTENCING JUDGE TO CONSIDER AN 

UNGUIDED AND STANDARDLESS MANDATORY JURY 
SENTENCE OF DEATH AS A FACTOR IN DETERMINING 

WHETHER A DEFENDANT LIVE OR DIE
FACIALLY INVALID WHEN MEASURED BY THE 

STANDARDS OF THE EIGHTH AND FOURTEENTH
a m e n d m e n t s  t o  t h e  c o n s t it u t io n  o f  t h e  u n it e

STATES.*

A. The Mandatory Jury Sentence Of Death Which The Stat­
ute Requires Be Imposed As A Pre-Requ.s.te To Sentenc­
ing Is Unguided, Standardless, Reflects A Blurred Con­
sideration Of Guilt/Innocence And Sentencing Concerns, 
And Is A Constitutionally Impermissible Factor For 
Determining Sentence.

Alabama’s 1975 death penalty statute forces the jury to 
regard itself as the final sentencing authority. The jury, 
therefore, is compelled to consider the “grave matter of 
“whether a human life should be taken or spared, Gregg 
v Georgia, 428 U.S. 153,189 (1976), at the same time that 
it weighs the factual issues of guilt or innocence. Thus, 
the distinct questions (a) whether a defendant is guilty 
and (b) whether the appropriate sentence, given the find­
ing of guilt, should be death become inescapably blurred 
in the minds of Alabama juries. This blurnng of such

_ "This brief will address the validity of the 1975 Alabama death 
penalty law when measured by the Eighth and Fourteenth Amend­
ments to the Constitution of the United States. Although the pet.tum 
for writ of certiorari also references the Sixth Amendment, no argu­
ment will be made that the statute is invalid under that amendmen .

8

critical distinctions not only leads to irrationahty and 
uncertainty in the determination of a defendant s guilt 
innocence*but also renders Alabama’s 
dures unconstitutionally arbitrary and rigid. By failing to 
provide juries with sufficient information or guidance to 
make such a momentous decision, the Alabama scheme 
forces juries to play a hobbled and distorted role m the
sentencing process.

The decisions of this Court d e m o n s t r a t e s u c h  a 
scheme is intolerable. In Furman v. Georgia, 408 U.b. 
238 (1972) this Court began the search for sentencing 
procedures in capital cases that would protect he dignity 
K c h  individual defendant by properly tailoring the 
punishment to the offender This continuing: search 1ms 
been animated by the central recognition that death  ̂
nunishment is unique in its seventy and irrevo 
Gregg v. Georgia, 428 U.S. 153, 187 (1976); F « n j » v  
Georaia 408 U.S. 238, 286-291 (1972). The imposition of 
such a drastic and irreversible punishment as death must 
be attended by special care and sensitivity to ensuie that 
everTsafeguard fe observed. See Powell v Alabama, 287 
U S 45 n  (1932). Indeed, this Court has emphasized 
"the need for treating each defendant m a capital case 
with that degree of respect due the uniqueness o e
r n t £ ”£ * t t v  01,i o , « U S
also Eddings v. Oklahoma, 455 U.S. 104,110-1

Following this Court’s 1972 decision in Frmnan v 
Georgia, a number of state legislatures sought to enact 
rpvised death penalty statutes which would comply wit 

in Furman.This Court revised five of 
.. S ta tu te s  in 1976 in a landmark series of decisions 
S  X e d  andclarified the analysis sketched m



9

Furman,7 Of these five statutes, this Court struck down 
those from North Carolina and Louisiana. This Court 
observed that those two statutes both responded to Fur- 
man’s concern over unchanneled jury discretion by 
removing all discretion from juries in capital cases. But as 
the Court noted, these “mandatory statutes enacted in 
response to Furman have simply papered over the prob­
lem of unguided and unchecked jury discretion.” Wood- 
son v. North Carolina, 428 U.S. 280, 302 (1976). See also 
Stanislaus Roberts v. Louisiana, 428 U.S. 325 (1976).

While unbridled jury discretion creates unacceptable 
arbitrariness in the imposition of capital sentences, 
mandatory sentencing offers no solution to the problems 
of arbitrariness identified in Furman and, indeed, pre­
sents its own distinct set of dangers. As this Court ex­
plained, the “failure [of mandatory sentencing] to allow 
the particularized consideration of relevant aspects of the 
character and record of each convicted defendant before 
the imposition upon him of a sentence of death,” (Wood- 
son v. NoHh Carolina, 428 U.S. at 303) creates an unduly 
harsh and unworkably rigid system of punishment that 
violates the Eighth Amendment.

Thus, sentencing decisions made under a mandatory 
scheme are bound to be irrational. This is because the 
jury either will reject a guilty verdict even where the 
defendant’s guilt is well-established because of its con­
cerns about the death penalty, or will impose the death 
sentence indiscriminately on defendants without regard 
to the offender’s individual character and record. In sum, 
a sentencing scheme that replaces unfettered discretion

7 See Gregg v. Georgia, 428 U.S. 153; Proffitt v. Florida, 428 U.S. 
242; Stanislaus Roberts v. Louisiana, 428 U.S. 325; Woodson v. 
NoHh Carolina, 428 U.S. 280; Jurek v. Texas, 428 U.S. 202.

10

with a mandatory system completely fails to provide the 
“constitutionally indispensable” consideration “of the 
character and record of the individual offender.” Wood- 
son v. North Carolina, 428 U.S. 280, 304 (1976).

In the landmark opinion in Gregg v. Georgia, 428 U.S. 
153 (1976), the Court explained that the best answer to 
these concerns is found in the middle ground between 
standardless discretion and mandatory sentencing. Id. at 
190-192. This Court stated explicitly that the concerns 
expressed in Furman “are best met by a system that 
provides for a bifurcated proceeding at which the 
sentencing authority is apprised of the information rele­
vant to the imposition of sentence an provided with stand­
ards to guide its use of the information.” Id. at 195.

Alabama’s statute departs so drastically from this mid­
dle ground that it cannot withstand constitutional scru­
tiny. Although, this Court in Beck v. Alabama was not 
required to reach the constitutionality of the mandator y 
jury sentencing aspect of Alabama s statute, the Court 
did expressly consider this portion of the statute in the 
course of reviewing the constitutionality of the preclusion 
clause. This Court left no doubt that it regarded this 
portion of the statute to be as defective as the preclusion 
clause.

The Alabama statute, which was enacted after Fur- 
man but before Woodson, has many of the same 
flaws that made the North Carolina statute unconsti­
tutional. Thus, the Alabama statute makes the guilt 
determination depend, at least in part, on the juiy s 
feelings as to whether or not the defendant deserves 
the death penalty, without giving the jury any stand­
ards to guide its decision on this issue.

Id. at 640 (emphasis added).



11

Thus, beyond simply distorting the guilt phase, the 
mandatory sentence provision allows the jury to consider 
the propriety of a sentence of death without full informa­
tion, careful guidance and focused, prudent review. In 
that sense, the Alabama statute harbors the same con­
stitutional vices as the North Carolina statute. As this 
Court observed in Woodson v. North Carolina:

A process that accords no significance to relevant 
facets of the character and record of the individual 
offender or the circumstances of the particular 
offense excludes from consideration in fixing the ulti­
mate punishment of death the possibility of compas­
sionate or mitigating factors stemming from the di­
verse frailties of humankind. It treats all persons 
convicted of a designated offense not as uniquely 
individual human beings, but as members of a face­
less, undifferentiated mass to be subjected to the 
blind infliction of the penalty of death.

Id. at 304 (emphasis added).
Alabama juries are necessarily torn between the 

frustration, on one hand, of attempting to treat each 
offender as a unique individual, but without sufficient 
information, guidance or discretion to render a proper 
sentence, and the temptation, on the other hand, of treat­
ing all convicted defendants as simply a faceless mass on 
which the sentence of death must be inflicted indiscrimi­
nately. As this Court stressed in Woodson and Roberts 
this kind of tension, and the uncertainty and unreliability 
which it spawns is intolerable in a capital case. Because 
“the penalty of death is qualitatively different from a 
sentence of imprisonment . . . there is a corresponding 
difference in the need for reliability in the determination 
that death is the appropriate punishment in a specific 
case. Woodson v. North Carolina, 428 U.S. 280, 305 
(1976). Alabama’s system fails to provide that necessary

12

degree of guidance and reliability and the result is a 
constitutionally chaotic scheme which makes a con­
stitutionally impermissible factor, i.e., a mandatory sent­
ence of death, an indispensable part of the sentencing 
process.8

B. The Alabama Death Penalty Statute Requires The 
Sentencing Judge To Weigh The Constitutionally Imper­
missible Mandatory Sentence Of Death Along With The 
Other Aggravating And Mitigating Circumstances, Thus 
Creating A Capital Sentencing Scheme Which Violates 
The Eighth And Fourteenth Amendments.

As previously noted, the trial judge, in determining 
sentence under the Alabama capital sentencing scheme, 
is required to weigh not only the aggravating and mitigat­
ing circumstances presented by a case, but also the “fix­
ing of the punishment at death by the jury.” Ala. Code 
§ 13-11-4 (Repealed 1981). Thus, at the very beginning of 
the sentencing hearing, the judge has before him not only 
a jury verdict of guilty, but also a jury determination that 
death is the appropriate punishment. This fact alone in­
jects a wholly unconstitutional ingredient into the 
sentencing judge’s consideration—namely, a jury sent­
ence of death which is not based on an exercise of in­
formed or channeled discretion. But Alabama goes fur­
ther. The statute requires the judge to weigh the com­
pletely mandatory and totally standardless jury sentence 
of death in addition to his consideration of aggravating

8 As the United States Court of Appeals for the Eleventh Circuit 
noted in Ritter v. Smith, 726 F.2d 1516 (11th Cir. 1984),

Because the mandatory death sentence as a statutorily required 
factor to be considered in the sentencing process is a factor which 
is unguided and standardless, reflects no individualized consid­
eration of the particular defendant or crime, and is irrelevant to 
the sentencing process, we hold; that it is a constitutionally 
impermissible factor in Alabama’s capital sentencing scheme.



13

and mitigating circumstances. The constitutionally im­
permissible factor of the jury’s mandatory death sentence 
must be given weight in the judge’s own sentencing deci­
sion.

The Alabama Supreme Court, nonetheless rejected the 
constitutional challenge to the statute. It did so in spite of 
the warnings of unconstitutionality broadcast by this 
Court’s decision in Beck v. Alabama and in spite of the 
fact that it has rewritten the Alabama death penalty law 
to eliminate the provisions which it now seeks to uphold. 
In a vain attempt at principled jurisprudence, the court 
noted that:

The statute is saved by the fact that the court which 
is the sentencing authority, considers the circum­
stances of the particular offense and the character of 
the offender, i.e., the aggravating and mitigating 
circumstances, in a separate and independent 
sentencing hearing, and then imposes sentence.

Baldwin v. State, No. 83-276 (Ala. July 13,1984), slip op. 
p. 17. The opinion however, omits the crucial factor that 
the trial judge must also weigh the standardless and 
unguided jury sentence of death before determining the 
appropriate penalty. In so doing, the court ignores the 
very flaw which kills the statute. It does not, and cannot 
answer the constitutional objection which this case pre­
sents. The Alabama statute requires the trial judge to 
consider, as a factor in the sentencing process, a mandato­
ry jury sentence of death, which is unguided and stan­
dardless, reflects no individualized consideration of the 
particular defendant or crime and is irrelevant to the 
sentencing process. It is patently unconstitutional.

Indeed, the Alabama legislature has impermissibly 
“stacked the deck” in favor of death. Witherspoon v. 
Illinois, 391 U.S. 510, 523 (1968). By requiring the trial

14

judge to incorporate into his sentencing decision a wholly 
unconstitutional and ineradicable ingredient—namely, 
the jury’s death sentence which is not based on a full 
consideration of mitigating and aggravating factors—the 
statute prevents any meaningful review of sentencing 
information by the trial judge. The statute so narrowly 
confines the trial judge’s exercise of sentencing discretion 
that this constitutionally fundamental review of the de­
fendant’s character and record becomes a charade. The 
evils of mandatory sentencing without full information or 
guidance are carried through to the judge’s final sentenc­
ing decision and thereby render that final decision an 
unacceptable means of determining who is to live and who 
is to die. This Court in Beck made this point clearly:

[I]t is manifest that the jury’s verdict must have a 
tendency to motivate the judge to impose the same 
sentence that the jury did. Indeed, according to sta­
tistics submitted by the State’s Attorney General, it 
is fair to infer that the jury verdict will ordinarily be 
followed by the judge even though he must hold a 
separate hearing in aggravation and mitigation be­
fore he imposes sentence.

Id., at 646 (footnote omitted), (emphasis added).
The Supreme Court’s decision in Proffitt v. Florida, 

428 U.S. 242 (1976), is also instructive on this point. 
There this Court considered Florida’s death penalty 
sentencing procedures in which a jury renders an adviso­
ry sentence that is reviewed by the trial judge." Finding 
that these procedures presented “an informed, focused, 
guided and objective inquiry into the question whether |a

9 Under the Florida system, if a defendant is found guilty of a 
capital offense, then a separate evidentiary hearing is held before the 
trial judge and the jury to determine his sentence. At the conclusion



15

defendant convicted of a capital offense] should be sent­
enced to death,” the Court upheld the Florida death 
penalty statute. Id. at 259.

At first glance, the Alabama system appears to resem­
ble the Florida scheme upheld in Proffitt. However, that 
resemblance is only superficial. Upon close inspection, 
the Florida procedures approved by the Court are dis­
tinct in several fundamental respects from Alabama’s 
flawed system, and indeed, the Florida scheme, far from 
providing support for Alabama’s sentencing procedures, 
demonstrates that the Alabama system must be con­
demned.

Under the Florida system, the jury is permitted to 
offer a truly “advisory” recommendation. This advice is 
informed by the evidence introduced at the separate 
sentencing hearing and is sharpened by detailed guidance 
concerning mitigating and aggravating factors. The Flor­
ida jury has a real choice between life imprisonment or 
death. In addition, the Florida sentencing judge must 
give special weight to a jury recommendation that life 
imprisonment is warranted: “In order to sustain a sent­
ence of death following a jury recommendation of life, the 
facts suggesting a sentence of death should be so clear and 
convincing that virtually no reasonable person could dif­
fer.” Proffitt v. Florida, 428 U.S. 242, 249 (quoting Ted­
der v. State, 322 So.2d 908, 910 (1975)). In Alabama, of

of the hearing, the jury is directed to consider whether certain 
statutorily enumerated mitigating circumstances outweigh the 
aggravating circumstances, and "based on these considerations, 
whether the defendant should be sentenced to life [imprisonment] or 
death.” Proffitt, supra, 428 U.S. at 248. The jury’s sentence is only 
advisory; the actual sentence is determined by the trial judge who 
must also weigh the mitigating factors against the aggravating fac­
tors. Id. at 249-250.

16

course, the trial judge will never have the opportunity to 
weigh such a jury recommendation favoring life imprison­
ment because the system precludes a jury from rendering 
such a verdict.

By contrast to Florida’s scheme, the Alabama jury, 
although it is required to make a sentencing as well as a 
guilt determination, receives no guidance, and has no 
discretion to choose intelligently between life or death. 
And yet, despite these limitations, the trial judge is com­
pelled to consider the jury’s “fixing of the punishment at 
death” in making his final sentencing decision. The distor­
tions which that requirement injects into the sentencing 
process renders Alabama’s scheme unconstitutional.

The Florida legislature, by allowing the jury to express 
its opinion to the sentencing authority, has clearly sought 
“to maintain a link between contemporary values and the 
penal system,” Witherspoon v. Illinois, 391 U.S. 510, 
519, n. 15 (1968). But Alabama has made such a link illuso­
ry. Its juries are not free to express community values 
and its sentencing judges are required to incorporate the 
jury’s automatic sentence into his sentencing delibera­
tions. The net effect of this remarkable procedure is to 
perpetuate all of the evils of mandatory sentencing identi­
fied in Woodson without providing a truly reliable 
mechanism to guard against or limit those evils. A careful 
consideration of “the uniqueness of the individual” Lock­
ett v. Ohio, 438 U.S. 586, 605 (1978) is made impossible. 
Alabama has thereby ignored “the fundamental respect 
for humanity underlying the Eighth Amendment Iwhich] 
requires consideration of the character and record of the 
individual offender and the circumstances of the particu­
lar offense as a constitutionally indispensable part of the 
process of inflicting the penalty of death.” Woodson v. 
North Carolina, 428 U.S. 280, 304 (1976).



17

C. The Unconstitutionality Of Petitioner’s Death Sentence 
Is Not Altered By The Fact That The Alabama Appellate 
Courts May Have Also Weighed The Aggravating And 
Mitigating Circumstances.

In its “Brief in Concurrence with the Certiorari Peti­
tion” the state argues that the death sentence in this case 
is saved from unconstitutionality by the fact that the 
Alabama appellate courts may have also weighed the 
aggravating and mitigating factors and independently 
concluded that the sentence of death was appropriate. 
Even assuming without conceding that such a weighing 
process occurred, petitioner’s death sentence is nonethe­
less unconstitutional.

In support of its contention that the imposition of a 
death sentence upon petitioner under an invalid sentenc­
ing scheme is constitutional, the state relies on this
Court’s decision in Wainwright v. Goode,----- U .S.------ ,
78 L.Ed.2d 187 (1983), a plurality opinion which held that 
a death sentence based in part on an aggravating circum­
stance not authorized by state law is not unconstitutional. 
The decision in Wainwnght v. Goode however, must be 
analyzed in the light cast by this Court’s decision in Zant
v. Stephens, ___  U.S. ----- , 77 L.Ed.2d 235 (1983).
When that analysis occurs, it is plain that the petitioner’s 
death sentence cannot stand.

As the state correctly notes, this Court’s previous 
jurisprudence indicates that the use of an illegal sentenc­
ing factor does not automatically invalidate the death 
sentencing process. In Wainwnght v. Goode, supra and
Barclay v. Florida, ----- U.S. -------, 77 L.Ed.2d 1134
(1983), for example, this Court held that the use of an 
aggravating factor which was illegal under state law, but 
which was not federally unconstitutional did not require 
invalidation of an otherwise valid death sentence. Like-

18

wise, in Zant v. Stephens,----- U.S------- , 77 L.Ed.2d 235
(1983), this Court found that use of a sentencing factor 
which was illegal under the federal constitution did not 
invalidate the death sentencing process if the underlying 
evidence introduced by the invalid factor was admissible 
at the sentencing hearing both under state law and the 
United States Constitution. This Court in Zant was care­
ful, however, to point out that there is a third category of 
sentencing factors which are per se unconstitutional. The 
use of a factor in this third category automatically in­
validates the sentencing process.

The boundaries of this third category are clearly 
marked by the Zant opinion. According to that holding, a 
state may not use as a sentencing factor supporting a 
death sentence,

. . [fjactors that are constitutionally impermissible 
or totally irrelevant to the sentencing process, such 
as, for example, the race, religion or political affilia­
tion of the defendant (citation omitted), or to conduct 
which actually should militate in favor of a lesser 
penalty, such as, perhaps the defendant’s mental 
illness.

Zant v. Stephens, 77 L.Ed.2d at 255. The constitution 
requires that a death sentence based on the type of 
sentencing factor in this third category must be set aside. 
Id.

The jury mandatory sentence of death which is at issue 
here is clearly the kind of sentencing factor whose use 
requires automatic reversal. It is a constitutionally im­
permissible factor which injects irrelevant consideration 
into the capital sentencing process, and thus unconstitu­
tionally infects it. Petitioner is entitled to have his death 
sentence vacated.



19

CONCLUSION

The judgment of the Alabama Supreme Court, insofar 
as it affirmed petitioner’s sentence of death, should be 
reversed.

Respectfully submitted,
Is/ John L. Carroll 
J ohn L. Carroll 

322 Alabama Street 
P.O. 5042
Montgomery, AL 36103 
205/263-7364

Roger A ppell 
2000 First Avenue, North 
Brown Marx Towers 
Birmingham, AL 35203 

Attorneys For Petitioner