Beecher v. Alabama Brief for Respondent in Opposition
Public Court Documents
June 30, 1967

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Brief Collection, LDF Court Filings. Beecher v. Alabama Brief for Respondent in Opposition, 1967. c9ccc31e-c39a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ca5024d6-3fff-434e-a1a9-cbbb3fbdf589/beecher-v-alabama-brief-for-respondent-in-opposition. Accessed July 01, 2025.
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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