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

    IN THE UNITED STATES DISTRICT COURT
F'OR TIIE MIDDLE DISTRICT OF ATABAMA

NORTHERN DIVISION

JULIA P. WII,DER,

Petitioner

vs.

EALON M. LAMBERT, et &1.,

Respondents

CIVIT ACTION
N0. 8l-H-580-N

II{EUORANDUM BRIEF OF RESPONDENTS IN REPIY TO
F-SEPPo-HI-OF -fr 

o [T0T ---FdR--S0I{-Imtrf -J-UD6fr-ENf

Petitionerrs first issue is that the inilictment was

totally tlefective in that it failecl to inforn her of the

nature ancl eause of the accusation against her.

(Petitionerrs brief, p. 4)

Sufficieney of a state indietment is not a matter

for federal habeas corpus relief unless it can be shoun

that the indictment is so tlefective that the convieting

court had no jurisclietion, BfelgL-v-:--EE!.9.1-1-e ' 611 F.2d

1ZZ9 (f tf, Cir. 198C), ancl that under no cireumstanees

could a valicl convietion result from facts provable under

t he indi ctment. Johnsolv. 
-E-s-!-e-1le. , 704 F. 2d 232 ( ;t tr

Cir. 198il; grqqe-r -y. !al14er, 6e1 I'.2d 1176 (Zttr Cir.

1982).



The intlictment w&a clearly sufficient to confer

Jurisdictlon on the state trial court to try petitioner

for a violation of AlabqqA_[o-qg 1975, $ 17-2r-1 .

Under subheadlng 'rArr of petitloner's argument, she

asserts: 'rThe Jury w&s. . . authorizecl to f incl petltioner
guilty uncler I ll-Zl-l lf she aeted ln a manner f not

authorlzed by or.,.eontrary tor any slngle provision of

any one of a number of statutes not specifled or even

hintecl at 1n the inclictment. " ( petitioner's brief , p.

5)

This assertion by petitioner is abeolutely

incorrect. Uncler the trial eourtf s charge to the jury,

the Jury was authorizetl to return guilty verclicts only

upon proof of the following tvo theories as set out by

the court:

1. The State charges here that the
tlefentlant voted more than onee and
that she received ballots
tleslgnated for registered voters,
that she marked or had these
ballots narked in the uay that she
wanted them to be narked, and they
were eventually cast and counted
as 1aw for votes. The charge 1s
that the tlefendant voted the
ballots and not the absentee
voters in whose name they were
clesignated, and that this anounted
to her having voteC more than
once.

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2. The State contencls that the
defenclant participated in the
scheme to secure absentee ballots
and to iIlega11y or frauclently
cast those ballote. It is the
Staters eontentlon that on some of
the absentee ballots that eane
into Jul1a Wilcler's possession,
she marked the ballots or hatl
knowleclge that the ballote uere
marketl by someone other than the
reglstered voter and without that
voter's knowledge or consent, that
she signetl or cauged to be signetl
or had knowleclge that the ballots
were signed by soneone other than
the registered voter without that
voter I s knowletlge or eonsent.

Sueh a ba1Iot would be l1legal to
cast a ba11ot or participate in
the scheme to cast that baIlot
with knowledge of these facts antl
woulcl fa11 within the acts
prohibited by Section 17-23-1.

(n. T 1-112)

Thus, petitioner's argunent that the iury
authorized to find her guilty under I ll-Zl-t

was

if she had

aeted in a nanner "not authorized

single provision of any one of a

by or contrary to" any

number of statutes not

specified in the indictment is without merit.

Thus, under the trial court's instructions, the case

was submitted to the iury on the very charges of the

indictment, which charges are charaeterized by the

Alabaraa Court of Criminal Appeals as follows:

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Count one nacle the IPetitioner]
aware that she did i11ega11Y or
fraudulently vote by voting nore than
once by depositing more than one
balIot &s her vote in the Democratic
Primary Run-off Xlection of Septenber
25, 1 978.

Count two informecl the Ipetitioner]
that she did cast il1ega1 or
frautlulent absentee ballots by voting
nore than one absentee ballot or bY
clepositing more than one absentee
ba11ot as her vote in the Denocratic
Primary Run-off Election of Septenber
26,1978.

Count three notifietl the
Ip"titioner] tfrat she dtd cast lI1ega1
or frauclulent absentee ballots by
deposlting with the Piekens County
Circuit C1erk, absentee ballots which
were frautlulent ancl that she knew to
be fraudulent.

lille-f-L State , Ms . 0P. , P. 20 .

Respondents submit the eviclence was sufficient

to f incl petitioner guilty untler either or bot h theories

on whieh the case was submittecl to the iury and uncler any

one or all three counts of the inclictment uncler the

standard of revier* manclatecl by Jackson v. Vilglnia, 441

u.s. 307 (rgzg).

Petitioner's entire ehallenge to

the intlictment must fa1} under Knewel

the suffieiency of

-y: _Eg-at1 , 258 U. S .

442 (1925) (Notine here that petitioner has nade some

arguments about the indietment being insuffieient because

fraudulent conduct is charged and there being no



speclflcs or particulars of the fraudulent acts, the

faets of Knewe1 v. Egan make that casc parttcularly

appltcabl.e here ln that the lndictment challenged in

Knewel alleged filtng a "fa1se and fraudulent I lnsurance]

elaimr" but did n6t etate ln partlcular in what manner

the claim was "false or fraudulent.u).

II.
Petitioner's second lssue ls that the courtre Jury

lnstruetions subjected petitioner to ex post facto

IiabllLty. (petttloner's brlef, p. 24) Thls assertlon

by petltioner is neritless. As has been shown ln

resp5ndentgt arguments abOve untler petltlOner's first
lssue, the case was submttted to the iury under two

theorles of guiLt under the lndictment, both 0f whlch

uere clearly charged lrr the lndictment.

III.
Petitioner's third l-esue (f etitioner's brief , p.

28), like her first two, ts based orr the false prenlse

that the trial courtrE lnstructions authorized the iury

to convtet rrrder $ ll-23-l tf they found petS.tloner had

irrfrin6led irr &rr] way the statutes the court maoe

reference tc in its oral eharge. Agairr, as has beerr

shcvrr above, this premise ts absolutetry &rrd tota)-}y

ir.eorrect.



Fina1Iy, tt ls the position of respontlente that none

of the arguments macle here which are basetl on alleged

errors in the trial eourt'8 oral charge can be

entertained by a habeas eourt because they were not

presented to the state trial court as provided for and

requiretl by Alabama procedural 1aw.

Although petitioner did challenge the suffieiency of

the lntlictment by a pre-triaI motion (R. 724-125), the

grouncls raieed in the habeas petitlon here relating to
the courtrs oral charge Yere not presentetl to the trial

eourt, nor have they been passeil on by the Alaba.ma

appellate eourts.

The proper procetlure at trial woultl have been an

objection at the end of the eourtts oral charge to the

jury, and that objeetion shoulcl have been that tt was

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

four etatutes covered in the oral charge on grounds the

statutes were not inclucled or charged in the indictment,

on grouncls that charging the Jury on these statutes

subjected petitioner to ex post facto liability, and on

grounds the trial eourtrs oral charge allowed a guilty

verdict on strict liability grounds.

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Alabama Iaw ls very clear that ln orcler to preserve

for review alleged errors in a trial eourt's oral charge,

a defendant must objeet, point out to the trial court the

allegeclly erroneous portions of the charge, ancl assign

specific grounds as to why the defendant believes there

was error. !feZe.I_! _I. Stl!9, 423 So. 2d 123 (ara. Crlm.

App. 1 982).

Failure to make suffieient objectS.on to preserve an

allegetl1y erroneous jury instruction waives the alleged

error for purposes of appellate review. Hill v. Stats,

409 So.2d 94, (lfa. Crim. App. 1981 )'
I{orever the objection is waivecl unless macle before

the Jury retires. Shovers v. State, 4O'l So.2d 159, 172

(ara. 1981 ).
The only relevant obJeetion nade at the end of the

trial courtts oral charge was:

...The Court...ehargecl the iury on
perjury under Title 15. We objeet to
that portion of the court's charge.(n. 115)

No grounds for the objeetion were assignetl.

Since petitioner made no objection suffieient to

preserve for appellate reviei* any issue as to the trial

eourt's orai charge, Petitioner failed to coraply with

Alabama procedural 1aw. Therefore, the notion for

summar.y judgment is due to be denied, and the petition is

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due to be denied on al} agsertions concernlng the trlal

courtts oral charge unless petitiorrer ean shcw cause for

failure to object and aetual preiudice resulting from the

charge. Walnwrlght v. Sykes, 451 U.S. 72 (1977).

Respeetfully submltted,

fuT"r-l-- t
RIVARD T,IEISON
ASSISTANT ATTORNEY GENERAI

vllnlllDU n. vtrdvu

ATTORNEY GENERA}

SISTANT ATTORNEY GENERAI

a1



CERTIFICAfE OF SERVICE

I hereby certify that on thls Z4th day of Febru&rY,

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

for Petitioner, Yanzetta Penn Durant, 519 Flartha Street,

Montgon€ry, Alabarna ,5108, bX hand delivery.

ASSISTANT ATTORNEY GENERAI,

ASSISTANT ATTORNEY GENERAL

ffiIflD-ffif,s-O

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