Evans v. Birtton

• Decision Date: 11 June 1979
• Docket Number: Civ. A. No. 79-0200-H.
• Citation: 472 F. Supp. 707
• Parties: John Louis EVANS, III, Petitioner, v. Robert G. BIRTTON, Commissioner, Alabama Board of Corrections, and Joseph Oliver, Warden, Holman Prison, Respondents.
• Court: U.S. District Court — Southern District of Alabama

472 F. Supp. 707

John Louis EVANS, III, Petitioner, v. Robert G. BIRTTON, Commissioner, Alabama Board of Corrections, and Joseph Oliver, Warden, Holman Prison, Respondents.

Civ. A. No. 79-0200-H.

United States District Court, S. D. Alabama, S. D.

June 11, 1979.

COPYRIGHT MATERIAL OMITTED

Dennie N. Balske, Stephen J. Ellman, Morris S. Dees, Jr., John L. Carroll, Montgomery, Ala., for petitioner.

Edward E. Carnes, Jack M. Curtis, Asst. Attys. Gen., Montgomery, Ala., for respondents.

MEMORANDUM OPINION

HAND, District Judge.

The petitioner, presently incarcerated on death row at Holman Prison Unit under a death sentence imposed by the Circuit Court of Mobile County, brings this action seeking habeas corpus relief from such sentence pursuant to Title 28 U.S.C.A., § 2254. The facts leading up to the conviction of the petitioner have been set out by the Alabama Court of Criminal Appeals in Evans v. State, 361 So.2d 654, 655-62 (Ala.Cr. App.1977), and need not be repeated here. The petitioner was convicted of capital murder by a jury in the Mobile County Circuit Court on April 26, 1977 and, following a presentence hearing on April 27, 1977, the trial judge accepted the death penalty sentence returned by the jury. In October of 1977 the conviction and sentence were affirmed by the Alabama Court of Criminal Appeals, id., and these decisions were affirmed by the Supreme Court of Alabama in May of 1978. Id. at 666. Evans filed a petition for a writ of certiorari in the United States Supreme Court on November 16, 1978, but the petition was denied on February 21, 1979. Evans v. Alabama, ___ U.S. ___, 99 S.Ct. 1267, 59 L.Ed.2d 486 (1979) (Marshall & Brennan, JJ., dissenting). On March 1, 1979, the Alabama Supreme Court entered an order requiring that Evans be executed in accordance with the sentence on April 6, 1979. On April 5, 1979 the United States Supreme Court, through Justice Rehnquist, stayed the scheduled execution in response to a next-friend application for habeas corpus filed by petitioner's mother. Evans v. Bennett, ___ U.S. ___, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979) (Rehnquist, J.). This stay was later dissolved by a unanimous vote of eight members of the Court. Evans v. Bennett, ___ U.S. ___, 99 S.Ct. 1481, 59 L.Ed.2d 756 (1979). The Alabama Supreme Court set a new execution date of April 27, 1979, which was stayed by this Court on April 20th pending the final adjudication on the merits of the habeas corpus petition presently before the Court.

The petitioner sets out two general grounds for habeas relief: the trial judge erred in failing or refusing to instruct the jury in his case on the elements constituting a prima facie case of robbery; and the Alabama death penalty statute under which the petitioner was convicted and sentenced is unconstitutional. The Court is convinced that jurisdiction properly lies in this Court to consider these issues pursuant to Title 28 U.S.C.A. § 2254.

I.

The petitioner contends that the trial judge's failure to instruct the jury on the elements of robbery violated his right to due process of law. There is no question but that the jury was not so instructed, the oral charge of the trial judge reading in pertinent part as follows:

The charge against the defendants is that they did unlawfully, intentionally, and with malice aforethought, kill Edward Nassar during the course of a robbery. The law of Alabama provides that anyone who, during the course of a robbery, intentionally kills the victim, is guilty of this offense, and the punishment for this offense is death by electrocution. . . Now, the State must prove that the defendants intentionally killed Mr. Nassar. Unless there is an actual or positive intent to kill, they are not guilty of the crime with which they are charged. The intentional killing is a willful killing, an act governed by the will of the individual committing the same. The indictment further charges that they committed the act with malice. Malice means hatred or hostility toward another. It doesn't necessarily mean a personal ill will. When associated with murder, or a killing of this kind, it means an unlawful act, willfully done, without just cause or legal excuse. It is that mental state or condition which prompts one to do an unlawful act without legal justification. It has also been defined as that condition of mind which shows a heart, regardless of social duty, totally bent on mischief. . . .

(Transcript, pp. 223-24). Evans and his co-defendant, Wayne Ritter, had three attorneys representing them during this trial. None of these attorneys raised any objection to the oral charge given the jury by the trial court.

Evans' indictment charged that he violated section 13-11-2(a)(2) of the Alabama Code of 1975, which provides, in pertinent part, that:

(a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment, and which offenses so charged with said aggravation shall not include any lesser offenses:

* * *

(2) Robbery or attempts thereof when the victim is intentionally killed by the defendant. . . .

The petitioner contends that the trial judge's failure to instruct the jury on the elements of robbery before they considered his guilt or innocence on the charges constituted a violation of his due process rights, arguing that in order to find the petitioner guilty, it was incumbent upon the jury to find beyond all reasonable doubt that a robbery and an unlawful killing had taken place. And, of course, the due process clause protects criminal defendants from conviction in a case where there has not been "proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073, 25 L.Ed.2d 368, 375 (1970).

In most cases it might be proper for an Alabama appellate court to reverse and remand a conviction under the statute for failure to give such an instruction, since there is no question but that no defendant should be convicted by a jury that has not been fully charged on all elements making up the crime charged. The instant case is rather unique, however, in that the petitioner had pled guilty, voluntarily and with full knowledge of his Boykin rights, on four separate occasions, at least once before the jury, in that counsel for the petitioner raised no objection to the court's failure to so instruct, and in that this case is in this Court by means of collateral attack rather than direct appeal. This Court is of the opinion that the trial judge erred in failing to instruct the jury on the elements of robbery, but that such error was harmless or in any event did not result in any fundamental unfairness. See Bradley v. Wainwright, 561 F.2d 1200 (5th Cir. 1977). It cannot be said under the evidence presently before the Court that a properly charged jury might have reached a different verdict, e. g., Henderson v. Kibbe, 431 U.S. 145, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977), so it is quite clear that no constitutional error justifying habeas corpus relief is present.¹

Even if the Court were persuaded that the trial court's failure to instruct the jury on the elements of robbery amounted to a violation of the petitioner's due process rights, habeas relief would be foreclosed by the petitioner's admitted failure to raise a contemporaneous objection at trial to the omitted instruction. Clearly petitioner and his admittedly competent counsel were given the opportunity to object to the purportedly erroneous omission. Under Alabama law as it stood at the time of this trial, no defect in an oral charge was to be reviewed on appeal unless a timely objection had been made. E.g., Jacobs v. State, 361 So.2d 607 (Ala.Cr.App.1977). While the rule has recently been relaxed by an amendment to Rule 39(k) of the Alabama Rules of Appellate Procedure that permits the Supreme Court to note any plain error in the proceedings, the prior rule is applicable to this case. Of course, the fact that direct appeal is barred does not preclude this Court from considering the issues on a habeas corpus petition, but it is incumbent upon a party that has violated a state contemporaneous objection rule to make a showing of cause for or prejudice from the procedural default before the procedural default may be waived in federal court. See, e.g., Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506, 53 L.Ed.2d 594, 608 (1977); Spinkellink v. Wainwright, 578 F.2d 582, 591-92 (5th Cir. 1978). In the instant case the only cause for the procedural default is the conclusion of the petitioner's trial counsel that no instruction was necessary, and there is simply no evidence that counsel was incompetent or inadequate. In addition, there is no prejudice at all flowing from the procedural default since there is little if any likelihood that any other verdict would have been reached by the jury. Accordingly, the Court is of the opinion that habeas relief is not available to the petitioner herein for the trial court's failure to instruct the jury on the elements of robbery.²

II.

The second portion of the petitioner's habeas attack challenges the propriety of the Alabama Death Penalty Statute on various constitutional grounds. The petitioner raises seven specific constitutional objections to the Alabama statute, each of which is considered separately below by the Court.

Before considering the petitioner's various challenges, it is necessary to review the Alabama statutory scheme for the imposition of the death penalty. The Court notes at the outset that the Alabama statute was enacted in 1975, after the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), but prior to the 1976 death penalty cases of Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S....