Beecher v. Alabama Brief for Respondent in Opposition

    IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1966

NO. 1746, MISC.

JOHNNY DANIEL BEECHER, 
PETITIONER

V.

STATE OF ALABAMA, 
RESPONDENT

ON PETITON FOR WRIT OF CERTIORARI TO 
THE SUPREME COURT 

OF ALABAMA

BRIEF FOR RESPONDENT IN OPPOSITION

MaeDONALD GALLION 
Attorney General of Alabama

LESLIE HALL
Assistant Attorney General of Alabama

Administrative Building 
Montgomery, Alabama 36104

Attorneys for Respondent



1

INDEX
Page

QUESTIONS PRESENTED ...................................................... 1

STATEMENT ..............................................................    2

ARGUMENT ................................................................................. 6

CONCLUSION .........................................................................  12



ii

TABLE OF CASES

Page

Aaron v. State, 271 Ala. 70, 122 So. 2d 360, 366 .................... . 8
Akins v. Texas, 325 U. S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692 ..... 7
Beecher v. S tate,____Ala_____ _ 193 So. 2d 505 ...................... 8
Brown v. Mississippi, 297 U. S. 278, 80 L. Ed. 682,

56 S. Ct. 461 .........................................................................11
Cassell v. Texas, 339 U. S. 282, 286-287, 70 S. Ct. 629,

94 L. Ed. 839, 847 .................................................................  7
Chambers v. Florida, 309 U. S. 227, 84 L. Ed. 716,

60 S. Ct. 472 .........................................................................11
Clewis v. Texas, 35 U. S. L. W. 4371.......................................... 11
Commonwealth of Virginia v. Rives, 100 U. S. 313, 322-323,

25 L. Ed. 667, 670-671 .......................................... ...............  7
Duncan v. Sta,te, 278 Ala. 145, 176 So. 2d 840, 855-860 .......  9
Escobedo v. State of Illinois, 378 U. S. 478, 84 S. Ct. 1758,

12 L. Ed. 2d 977 .................................................................. 11
Gallegos v. Colorado, 370 U. S. 49, 8 L. Ed. 2d 325, 82 S. Ct.

1209, 87 A. L. R. 2d 614.................................................. .....11

Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L.
Ed. 2d 882 .............................................................................11

Leyra v. Denno, 347 U. S. 556, 98 L. Ed. 948, 74 S. Ct. 716..... 11
Lokos v. State, 278 Ala. 586, 179 So. 2d 714..............................  8

Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602,
16 L. Ed. 2d 694 ..................................  11

Pate v. Robinson, 383 U. S. 375, 15 L. Ed. 2d 815, 86 S.
Ct. 836 .................................................................................  8

Swain v. Alabama, 380 U. S. 202, 85 S. Ct. 824, 13 L. Ed.
2d 759 ............  6



Ill

Page

STATUTES

Title 15, Section 425, Code of Alabama 1940 (Recompiled
1958) .....................................................................................  8

CONSTITUTIONAL PROVISIONS

Fifth Amendment to the United States Constitution...............11

Fourteenth Amendment to the United States Constitution....11

OTHER AUTHORITIES

32 A. L. R. 2d 456 .......................................................................  9

21 Am. Jur. 2d, Criminal Law, Section 68, Pages 150-151.......  9



IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1966

NO. 1746, MISC.

JOHNNY DANIEL BEECHER, 
PETITIONER

V.
STATE OF ALABAMA, 

RESPONDENT

ON PETITON FOR WRIT OF CERTIORARI TO 
THE SUPREME COURT 

OF ALABAMA

BRIEF IN OPPOSITION

QUESTIONS PRESENTED

I .

WHETHER RACIALLY DISCRIMINATORY JURY SE­
LECTION EXISTS WHERE THE EVIDENCE SHOWS THAT 
NEGROES MAKE UP APPROXIMATELY SIX PER CENT 
OF THE TOTAL POPULATION OF A COUNTY, THERE IS 
NO EVIDENCE INDICATING THE RATIO OF WHITE 
MALES OVER 21 YEARS OF AGE TO NEGRO MALES OVER 
21 YEARS OF AGE, AND THE EVIDENCE SHOWS THAT 
APPROXIMATELY SIX PER CENT OF THE JURY ROLL 
IS MADE UP OF NEGROES.

II.

WHETHER PETITIONER INDICTED FOR MURDER 
WHO DID NOT PLEAD INSANITY AS A DEFENSE WAS 
DENIED RIGHTS GUARANTEED BY THE FOURTEENTH 
AMENDMENT WHEN REFUSED A MENTAL EX AMIN A-



2

TION PRIOR TO TRIAL AFTER THE TRIAL COURT 
HEARD CONFLICTING EVIDENCE ON A MOTION FOR 
SUCH MENTAL EXAMINATION.

III.

WHETHER, UNDER THE CIRCUMSTANCES OF THIS 
CASE, THE CONFESSION ADMITTED IN EVIDENCE WAS 
VOLUNTARY.

IV.

WHETHER, WHERE EVIDENCE AS TO THE VOLUN­
TARINESS OF A CONFESSION WAS TAKEN IN THE 
PRESENCE OF THE JURY, OBJECTIONS WERE MADE 
TO THE ADMISSIBILITY THEREOF, AND, IN THE AB­
SENCE OF THE JURY, THE COURT OVERRULED SUCH 
OBJECTIONS AND ADMITTED IT IN EVIDENCE, SUCH 
CONFESSION WAS PROPERLY ADMITTED IN EVIDENCE 
UNDER THE “TOTALITY OF CIRCUMSTANCES” RULE.

STATEMENT

On July 29, 1964 the Grand Jury of Jackson County, Ala­
bama, indicted the Petitioner on one count of murder in the 
first degree and two counts of rape (R. 2 and 9). The counts 
charging rape were nol-prossed by the State prior to commence­
ment of the trial on its merits (R. 2 and'1 120).

On September 2, 1964, the attorneys for Petitioner filed a 
Motion to Quash the Indictment alleging that the Petitioner 
was a Negro and that Negroes were systematically excluded 
from the jury rolls, jury boxes, and from jury service in 
Jackson County, Alabama (R. 11-12). This Motion was set for 
hearing on September 9, 1964 (R. 12), at which time testimony 
was taken, and at the conclusion of which the court denied the 
Motion (R. 16-94).



3

Mr. Frank Grigg, former Clerk of the Circuit Court and 
Clerk of the Jackson County Jury Commission, testified that 
there were some Negroes in Jackson County qualified for jury 
service during the time he was Clerk; that he had seen as many 
as four Negroes on a venire at one time while he was Clerk, in 
which capacity he served from July 3, 1946 until January 19, 
1959.

Mr. B. B. McKenzie, who had been Circuit Clerk since 
January, 1959, testified that he had never seen a Negro on a 
Grand Jury in Jackson County; that he served as Clerk of 
the Jury Commission from 1959 until December 1963; that 
while he was Clerk of the Jury Commission there were names 
of Negroes in the jury box and names of Negroes were drawn 
out of the jury box; that while he was Clerk of the Jury 
Commission, he did not put a “c” on the cards, nor did he direct 
that it be done; that there were names of Negroes on the special 
venire for the week of September 21, 1964; that there were no 
“c’s” on that list; that he did not know whether the names of 
any Negroes were on the regular venire list; and that he did 
not direct any of his employees to place a “c” on the venire 
list (R. 28-36).

It was stipulated that on the jury cards for the term of the 
week of September 21, 1964, there was no letter “c” shown on 
the cards of the regular venire or the two special venires (R. 35). 
It was further stipulated that the 1960 Federal Census figures 
for Jackson County, Alabama, showed a total population of 
36,681, of whom 2,231 are colored and 7 are listed as “others” 
(R. 36-37). The total population figures for Jackson County 
indicate that Negroes make up approximately 6% of the total 
population, which includes women and children as well as men. 
No evidence was introduced as to the number of males of each 
race 21 years of age and older.

Mr. Ed Hastings, a member of the Jury Commission since 
February 11, 1963, testified that after he became Chairman of 
the Commission in April, 1964, he checked the jury cards and 
found none on which the letter “c” appeared; that he personally



4

added the names of 9 Negroes to the jury roll the first Saturday 
in March, 1964, and that 31 more names furnished him by a 
Negro by the name of Mack Finley were added to the jury roll 
in June, 1964 (R. 61).

There was also evidence that there was an undetermined 
number of Negroes in the box in prior years, estimated at 
between 35 and 50 (R. 43).

On the Motion for a Sanity Examination, Napoelon Dukes, 
the father of Petitioner, who was himself serving a sentence for 
murder and who had previously been convicted of assault with 
intent to murder, testified that at the time Petitioner was born, 
Petitioner’s mother was afflicted with syphilis, “or something 
like that” ; that at birth, the Petitioner was likewise afflicted; 
that at the age of 10 years the witness took Petitioner to live 
with him in Buffalo, New York, that Petitioner was a normal 
kid growing up and went to school; and that the witness would 
not say that the Petitioner was crazy; that he had seen the 
Petitioner around the penitentiary for the last 9 years; that 
Petitioner got along “pretty well” in the penitentiary; and that 
the Petitioner was a queer (R. 69-77).

Other witnesses who had contact with Petitioner in the 
prison system testified that in their opinion the Petitioner was 
sane and knew the difference between right and wrong (R. 
65-89).

One of the State Investigators, who took a statement from 
Petitioner at Kilby Prison, testified that no threats were made 
or offers of reward tendered to the Petitioner; that the Petitioner 
was asked if he wanted an attorney; that Petitioner stated 
that he did not; that the Petitioner was not offered any 
immunity and was told that he did not have to make a state­
ment; that after the statement was reduced to writing, it was 
read back to the Petitioner; that the Petitioner signed the state­
ment in the presence of the witness; that the statement con­
sisted of 22 pages, each of which was initialed by the Petitioner; 
that the statement was taken in the Kilby Prison Hospital; that



5

the Petitioner’s leg had not been amputated at that time, 
although he had been shot in the leg; that the witness and 
another State Investigator were the only ones present when the 
Petitioner made the statement; that the Investigators were with 
the Petitioner for approximately an hour and a half; that the 
Petitioner did very little complaining about pain in his leg 
during this time; and that the statement -was given voluntarily 
(R. 43-155).

Mr. J. F. Gardner, the other State Investigator, verified 
the statements made by Investigator MacDowell (R. 156-159).

Counsel for Petitioner examined the witnesses who so 
testified on voir dire. The Petitioner did not take the stand, nor 
did he testify or offer any evidence that the confession was not 
voluntarily made. There was no request made by counsel and 
Petitioner that the Court determine the question as to whether 
or not the confession was voluntarily made, outside the presence 
of the jury. A discussion was held outside the presence of the 
jury, but the testimony and ruling thereon occurred in the jury’s 
presence, and the confession was admitted in evidence over the 
Petitioners’ objection (State’s Exhibit No. 4, R. 1$0).

On Motion for new trial, the Petitioner testified that after 
he had been in Kilby Prison Hospital for four days, he signed 
a written statement in the presence of Investigators MacDowell 
and Gardner; that a medical assistant was present part of the 
time and told him to cooperate with the Investigators; that the 
medical assistant told the Investigators that if the Petitioner 
didn’t tell them what they wanted to know, to let him know; 
that about 30 minutes before the officers came into the room, 
he was given a shot of morphine for pain; that his leg had not 
been amputated at that time, but that it was swollen and he 
was running a temperature and was in pain; that he had been 
given shots every four hours; that the pain was intense; that 
when the officers first started talking to him he understood 
them, but that later on he did not know what he said; that the 
shot was “pretty powerful” and put him in “a kind of slumber” ; 
that the officers asked him if he had a lawyer and he told them



6

he didn’t have any money to hire one; that the officers did not 
ask him if he wanted a lawyer or tell him that he was entitled to 
one; that he had been previously convicted of rape in Alabama 
and was serving a sentence for that crime at the time that he 
escaped; that he had also been convicted of 5 cases of grand 
larceny and one case of burglary (R. 217-231).

On April 14, 1965, the trial court entered an order denying 
the Motion for New Trial (R. 240-241).

ARGUMENT

I.

RACIALLY DISCRIMINATORY JURY SELECTION 
DOES NOT EXIST WHERE THE EVIDENCE SHOWS THAT 
NEGROES MAKE UP APPROXIMATELY SIX PER CENT 
OF THE TOTAL POPULATION OF A COUNTY, THERE IS 
NO EVIDENCE INDICATING THE RATIO OF WHITE 
MALES OVER 21 YEARS OF AGE TO NEGRO MALES OVER 
21 YEARS OF AGE, AND THE EVIDENCE SHOWS THAT 
APPROXIMATELY SIX PER CENT OF THE JURY ROLL IS 
MADE UP OF NEGROES.

In the recent case of Swain v. Alabama, 380 U. S. 202, 85 
S. Ct. 824, 13 L. Ed. 2d 759, this Court pointed out that while 
Alabama law requires that Jury Commissioners place on the 
jury roll all male citizens over 21 who are reputed to be honest, 
intelligent men and who are esteemed for their integrity, good 
character, and sound judgment, failure to include the name of 
every qualified person on the jury roll is not a ground to quash 
an indictment or venire, absent fraud or purposeful discrimina­
tion. In that case, Mr. Justice White stated in his opinion:

“A defendant in a criminal case is not constitutionally 
entitled to demand a proportionate number of his race on 
the jury which tries him nor on the venire or jury roll from 
which petit juries are drawn . . . Neither the jury roll nor 
the venire need be a perfect mirror of the community or



7

accurately reflect the proportionate strength of every 
identifiable group.”

See, also, Commonwealth of Virginia v. Rives, 100 U. S. 313, 
322-323, 25 L. Ed. 667, 670-671; Cassell v Texas, 339 U. S. 282, 
286-287, 70 S. Ct. 629, 94 L. Ed. 839, 847; and Akins v Texas, 
325 U. S. 398, 65 S. Ct. 1276, 89 L. Ed. 1692.

Mr. Justice White further stated:

“An imperfect system is not equivalent to purposeful 
discrimination based on race.”

The total population figures for Jackson County indicate 
that Negroes make up approximately six per cent of the total 
population, which includes women and children as well as men. 
The evidence further shows that in many precincts, especially 
on Sand Mountain, there were no Negro residents. There is no 
breakdown as to the Negro male population in the county of 
age eligible for jury service. However, the evidence shows that 
approximately six per cent of the jury roll is made up Negroes 
(R. 53). Assuming, for the sake of argument, that the number 
of Negro males of jury eligible age is in the same ratio as the 
total number of Negroes is to the total population, then the 
number of Negroes on the jury roll is in exact proportion to 
the number of white males. Therefore, there should be no cause 
for complaint on this score, and it is respectfully submitted that 
the Petitioner has failed to carry the burden of proof of his 
allegations of racial discrimination in connection with the jury 
selection process in Jackson County.

II.

A PETITIONER INDICTED FOR MURDER WHO DID 
NOT PLEAD INSANITY AS A DEFENSE WAS NOT DE­
NIED RIGHTS GUARANTEED BY THE FOURTEENTH 
AMENDMENT WHEN REFUSED A MENTAL EXAMINA­
TION PRIOR TO TRIAL AFTER THE TRIAL COURT 
HEARD CONFLICTING EVIDENCE ON A MOTION FOR 
SUCH MENTAL EXAMINATION.



8

As pointed out in our Statement, the only evidence sub­
mitted on behalf of Petitioner in support of his Motion for a 
Sanity Examination, was the testimony of his father, who 
himself had been convicted of crimes involving moral turpitude, 
and even though his father testified that at the time of 
Petitioner’s birth Petitioner’s mother was afflicted with Syphilis 
“or something like that” ; that at birth, the Petitioner was treated 
for this condition; and that Petitioner had been addicted to 
certain erratic behavior, Petitioner was “a normal kid growing 
up,” and the father would not say that the Petitioner was crazy.

However, other witnesses who had contact with the Pe­
titioner in the prison system testified that in their opinion the 
Petitioner was sane and knew the difference between right and 
wrong (R. 65-89). Actually, therefore, there was little conflict, 
if any, on the issue of the Petitioner’s sanity, and the Supreme 
Court of Alabama was correct in holding that the lower court 
was under no mandatory duty to appoint a lunacy commission 
or to direct the Superintendent of the State Hospitals for the 
Insane to examine him and to make a report as to his sanity, 
but such action was discretionary with the Presiding Judge in 
the light of the evidence presented to him in connection with 
the application, and the overruling of the Motion was not
reversible error. Beecher v. State ____ Ala. ____, 193 So. 2d
505, Lokos v. State, 278 Ala. 586, 179 So. 2d 714; Aaron v. 
State, 271 Ala. 70, 122 So. 2d 360, 366; Title 15, Section 425, 
Code of Alabama 1940 (Recompiled 1958).

The Petitioner argues that Pate v. Robinson, 383 U. S. 375, 
15 L. Ed. 2d 815, 86 S. Ct. 836, requires that the Petitioner 
should have been granted a mental examination prior to trial. 
The Respondent respectfully urges that the principles enunciated 
in Pate v. Robinson, supra, are not applicable in this case be­
cause of the fact that the evidence in this case did not raise a 
bona fide doubt as to the Petitioner’s competency.

Furthermore, the attention of the Court is invited to the 
fact that the Petitioner did not enter a plea of not guilty by 
reason of insanity in the instant case.



9

Whether a statute providing for mental examination of a 
defendant before or during trial should be invoked by the trial 
court has been held to be a matter within the discretion of the 
Court in Alabama, the District of Columbia, Louisiana, New 
York, Ohio, Oregon, Pennsylvania, South Carolina, and Virginia. 
32 A.L.R. 2d 456, 21 Am. Jur. 2d, Criminal Law, Section 68, 
Pages 150-151.

III.

UNDER THE CIRCUMSTANCES OF THIS CASE, THE 
CONFESSION ADMITTED IN EVIDENCE WAS VOLUN­
TARY.

On the trial of this case on its merits, the State offered 
evidence as to the voluntariness of the confession and counsel 
for the Petitioner were given full opportunity of cross-examina­
tion and voir dire examination, of which they availed themselves. 
However, for reasons best known to them, they did not place the 
Petitioner on the stand or present any evidence to refute the 
testimony as to the voluntariness of the confession. Under the 
doctrine laid down in Duncan v. State, 278 Ala. 145, 176 So. 2d 
840, 855-860, the Petitioner could have been placed on the stand 
and could have given testimony for the limited purpose of 
making a record of his version of the facts and circumstances 
under which the confession was obtained. This was not done, 
and the Petitioner’s version of the facts and circumstances 
under which the confession was obtained was not given until 
the hearing on the Motion for New Trial. His complaint that 
the confession was improperly admitted now comes too late.

The argument is made in the Petition for Writ of Certiorari 
that it does not appear from the record that the trial judge 
“actually and reliably determined” the facts on the issue of 
voluntariness. Certainly, after hearing evidence that the con­
fession was voluntarily obtained, and there being no contra­
diction thereof, the action of the trial judge in overruling 
Petitioner’s objection to the introduction of the confession in 
and of itself amounted to an actual and reliable determination



10

of the voluntariness of the confession. No other reasonable 
conclusion can be reached.

IV.

WHERE EVIDENCE AS TO THE VOLUNTARINESS OF 
A CONFESSION WAS TAKEN IN THE PRESENCE OF THE 
JURY, OBJECTIONS WERE MADE TO THE ADMISSIBIL­
ITY THEREOF, AND, IN THE ABSENCE OF THE JURY, 
THE COURT OVERRULED SUCH OBJECTIONS AND AD­
MITTED IT IN EVIDENCE, SUCH CONFESSION WAS 
PROPERLY ADMITTED IN EVIDENCE UNDER THE 
“TOTALITY OF CIRCUMSTANCES” RULE.

The confession in this case was made on June 22, 1964, 
in the hospital of Kilby Prison in the presence of two officers, 
and no one else. Before the confession was made, one of the 
officers present asked Petitioner if he wanted an attorney and 
he replied that he did not. This was denied by Petitioner in 
testifying on the Motion for New Trial. The confession was 
reduced to writing by one of the officers and was signed by the 
Petitioner, who also initialed each page of the confession. The 
confession was in narrative form and is a detailed statement of 
Petitioner’s actions after he escaped from the road gang on 
June 15, 1964 to the time he was apprehended on June 17, 1964.

In his Petition for Writ of Certiorari, the Petitioner seeks 
to tie in this confession with a so-called “confession” made by 
Petitioner in South Pittsburgh, Tennessee, at the time that he 
was captured, which was five days prior to the time that he 
made the written confession introduced in evidence. It is noted 
that the record on the trial of the case on its merits contains 
no reference to the so-called “confession” made in South Pitts­
burgh, Tennessee, and it was not brought into the case until the 
Petitioner testified in support of his Motion for New Trial. 
Therefore, the so-called “confession” in South Pittsburgh, Ten­
nessee, could have had no influence on the jury in reaching its 
verdict of guilty since this “confession” was not before it.



11

This Court has frequently stated that it has no guide to the 
decision of cases such as this, except the totality of circumstances 
that bear on the procedural safeguards of due process guaran­
teed by the Fourteenth Amendment and the element of com­
pulsion which is condemned by the Fifth Amendment. Gallegos 
v. Colorado, 370 U. S. 49, 8 L. Ed. 2d 325, 82 S. Ct. 1209, 87 
A. L. R. 2d 614.

None of the circumstances found to invalidate the admission 
of the confessions in Brown v. Mississippi, 297 U. S. 278, 80 
L. Ed. 682, 56 S. Ct. 461; Leyra v. Denno, 347 U. S. 556, 98 L. 
Ed. 948, 74 S. Ct. 716; Chambers v. Florida, 309 U. S. 227, 84 
L. Ed. 716, 60 S. Ct. 472, and Clewis v. Texas, 35 U. S. L. W. 
4371, exists in this case.

The holding in Miranda v. State of Arizona, 384 U. S. 436, 
86 S. Ct. 1602, 16 L. Ed. 2d 694, does not apply to this case. In 
Johnson v. New Jersey, 384 U. S. 719, 86 S. Ct. 1772, 16 L. Ed. 
2d 882, it was held that “Miranda applies only to cases in which 
the trial came after the date of our decision one week ago” 
(June 13, 1966). The trial in the instant case began September 
21, 1964.

Also, in Johnson v. New Jersey, supra, it was held that 
Escobedo v. State of Illinois, 378 U. S. 478, 84 S. Ct. 1758, 
12 L. Ed. 2d 977 “affects only those cases in which the trial 
began after June 22, 1964, the date of that decision.” Since the 
trial in the case now before the Court began on September 21, 
1964, Escobedo v. State of Illinois, supra, “affects” it.

The fact that Petitioner was not represented by counsel 
when he made the confession did not, of itself, render the 
statement inadmissible.

Under the evidence before the Court, the factual issue 
was presented on the question of voluntariness which was re­
solved in its favor and the confession was properly admitted 
in evidence.



12

CONCLUSION

For the foregoing reasons, it is respectfully submitted that 
the Petition for Writ of Certiorari should be denied.

I, Leslie Hall, one of the attorneys for Respondent, and a 
member of the Bar of the Supreme Court of the United States,
hereby certify that on the S ^ ^ 'd a y  o f -----1967, I
served the requisite number of copies of the foregoing Brief for 
Respondent in Opposition upon Jack Greenberg, James M. 
Nabrit, III, Michael Meltsner, and Conrad K. Harper, 10 
Columbus Circle, New York, New York 10019, and Solomon S. 
Seay, Jr., 34 North Perry Street, Montgomery, Alabama, Attor­
neys for Petitioner, by depositing the same in the United States 
mail, first class postal ' ’ ’ 11 ’ to them
at the addresses given.

Respectfully submitted.

LESLIE HALL
Assistant Attorney General of Alabama
Adminstrative Building 
Montgomery, Alabama 36104
Attorneys for Respondent

LESLIE HALL /
Assistant Attorney General of Alabama