Billingsley v. State

Defendant appeals from a conviction for rape and sentence of death. Defendant is one of three men charged with raping the prosecutrix on August 26, 1964, in Etowah County. The appeal of defendant's two companions are reported as follows: Butler v. State, 285 Ala. 387, 232 So.2d 631, and Liddell v. State,287 Ala. 299, 251 So.2d 601, decided March 4, 1971.

The evidence is adequately stated in both Butler and Liddell and no useful purpose would be served by repeating it here again. The evidence is ample to sustain a verdict finding defendant guilty. The sufficiency of the evidence is not questioned.

The questions here presented have been considered and decided in Butler or Liddell, or both. Defendant's contentions are numbered as in his brief, but contention IV is considered last.

I, II Defendant argues that the court erred in denying defendant's motion to quash the indictment on the grounds that the grand jury which indicted defendant had been drawn from a jury roll from which negroes had been systematically excluded, and later included, and from which women had been excluded. Defendant's contentions are without merit as is held in Butler and Liddell. III Defendant contends that the court erred in denying his motion for a continuance. This question is also considered inButler and Liddell and is without merit for the reasons there stated. V, VI Defendant contends that the death sentence imposed on him under Alabama law is unfair and illegal because the jury has unlimited and undirected discretion in deciding whether the death sentence shall be imposed. This contention is without merit as held in Butler. See McGautha v. California (Crampton v. Ohio), 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711, decided May 3, 1971. VII Defendant contends that the judgment should be reversed because the issue of guilt or innocence and also the punishment were determined by the same jury in a single trial. This contention was decided against defendant in Liddell. The question has been put to rest by the opinion in McGautha, supra, where Crampton had been convicted and sentenced to death by the same jury in one trial. The Supreme Court of the United States said:

"In light of history, experience, and the present limitations of human knowledge, we find it quite impossible to say that committing to the untrammeled discretion of the jury the power to pronounce life or death in capital cases is offensive to anything in the Constitution. . ..

". . . . . . . . . .

"The procedures which petitioners challenge are those by which most capital trials in this country are conducted, and by which all were conducted until a few years ago. We have determined that these procedures are consistent with the rights to which petitioners were constitutionally entitled, and that their trials were entirely fair. Having reached these conclusions we have performed our task of measuring the States' process by federal constitutional standards, and accordingly the judgment in each of these cases is

"Affirmed." VIII Defendant's contention that death is cruel and unusual punishment is answered in Butler. IX Defendant contends that he was not permitted to undertake discovery, referring it seems to the quashing of a subpoena duces tecum to the clerk of every circuit court in Alabama. This contention is sufficiently answered in Liddell. IV Defendant contends that certain members of the jury venire were challenged for cause and excused by the court because of their beliefs with respect to capital punishment, contrary to Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770,20 L.Ed.2d 776.

Audograph recordings of the qualifying questions propounded to the jurors and their answers have been sent to this court together with an affidavit made by the court reporter. This affidavit appears to be substantially the same as the court reporter's affidavit which is referred to in the opinion inLiddell.

The recordings have been played and replayed here. Most of the questions and statements made by the court can be understood but many answers and statements made by jurors cannot be understood at all, and other answers and statements by jurors can be understood only with considerable difficulty. Apparently the jurors were not close to the microphone. We do not approve the method which has been employed to report the proceedings to this court in the instant case.

A transcript of the recordings has been made here as accurately as our facilities permit. Side 3 appears to contain the following recital:

"Do you believe in capital or penitentiary punishment? Answer yes or no.

"Yes, sir, I do not believe in capital punishment. For what . . . ."

It seems that the question was asked by the court and answered by a juror, but the name of the juror is not understood.

Later on Side 3 comes the following recital:

"All right the information of counsel I would like to know whether this is an appropriate time to — we would like to challenge Mr. Ayres under Section 55, Title 30. Now, you have asked that for general information."

Side 4 appears to contain the following:

"ROBERT L. RICHARDSON, Jr.

"How old are you Mr. Richardson?

"43.

"And where do you live Mr. Richardson?

"I live in Gadsden.

"And you are employed where:

"Pharmaceutical salesman. . . . . Corporation.

"And have been for how many years?

"16 years.

"Are you married or single?

"Married.

"How many children?

"3.

"Do you know the defendant, Wheeler Billingsley, Jr.?

"No.

"To your knowledge do you know any member of his family?

"Well, I think I know his father.

"Do you understand that capital punishment in the State of Alabama is by death in the electric chair?

"Yes.

"Do you believe in capital punishment?

"I do for murder.

"I would like at this time if the court please to challenge Mr. Richardson.

"Mr. Richardson, just a moment please, the charge in this case is not murder but rape. Did I understand you to say that you do not believe in capital punishment for rape?

"Right.

"Any questions along that line gentlemen?

"The gentleman is challenged for cause but you will have to wait until we get the list back . . ..

"All right."

On Side 6 appears the following:

"Who do we have next?

"The next person is Mr. Robert L. Richardson, Jr.

"He has been challenged for cause. We did not take him off the list because . . . .

"Yes sir.

"That's all right. Sorry."

On Side 7 appears the following:

"Have I called Mr. Jessie Ray Richardson?

"I did call you, yes.

"And Mr. Robert Richardson, also? Haven't I?

"He has been challenged.

"Oh, I see."

In this situation, the procedure followed by this court in Jackson v. State, 285 Ala. 564, 234 So.2d 579, and inLiddell is due to be followed, to wit:

"Accordingly, this case is remanded to the lower court with instructions that a hearing be conducted with the appellant and his attorneys present, and those jurors who were excused upon challenge because of their affirmative answers to the general question as to a fixed opinion against capital punishment, be summonsed and examined.

"This examination should be directed toward determining whether or not they could, in view of their affirmative answers as to having fixed opinions against capital punishment, nevertheless consider the evidence and instructions of the court and return a verdict of guilty although that verdict could result in a death penalty, if they, being the triers of fact were convinced of the guilt of the accused, and that the facts warranted a sentence of death.

"The court is further instructed that this hearing be conducted as speedily as is feasible, that a full record be made thereof, a transcript of such record be made, together with the court's conclusions from the evidence adduced, and that a transcript of these proceedings under the seal of the clerk, be promptly forwarded to this court." (285 Ala. at 571, 234 So.2d at 586)

Remanded for further proceedings in accord with this opinion.

LAWSON, SIMPSON, MERRILL, HARWOOD, BLOODWORTH and McCALL, JJ., concur.

HEFLIN, C. J., concurs in result.

AFTER REMANDMENT.