Whittle v. State

• Citation: 518 So.2d 793
• Decision Date: 09 June 1987
• Docket Number: 4 Div. 781
• Parties: Bobby WHITTLE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 793

518 So.2d 793

Bobby WHITTLE v. STATE.

4 Div. 781.

Court of Criminal Appeals of Alabama.

June 9, 1987.

Rehearing Denied June 30, 1987.

Certiorari Denied Jan. 22, 1988

Alabama Supreme Court 86-1277.

John L. Knowles and Charles M. Kelly, Geneva, for appellant.

Don Siegelman, Atty. Gen., and Gerrilyn V. Grant, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Bobby Whittle was convicted of murder and sentenced to ninety-nine years in the penitentiary. On appeal, he claims that he was erroneously denied the assistance of a psychiatric expert and that his statements were inadmissible.

I

Following a defense motion for a psychiatric evaluation, the trial court ordered that the defendant be examined, prior to trial, at Taylor Hardin Secure Medical Facility in Tuscaloosa. As a result of the psychiatric evaluation, the defendant was found competent to stand trial and sane at the time of the offense. Under the circumstances, neither § 15-12-21, Code of Alabama 1975, nor Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), guarantees the defendant the further assistance of a psychiatric expert at state expense.

Although § 15-12-21(d) authorizes payment of court-approved expenses, "[t]he trial judge must find some reasonable basis for the expenditure of state funds before he may authorize" payment under the statute, Wiggins v. State, 440 So.2d 1164, 1167 (Ala.Cr.App.1983) (emphasis added). Once the defendant has been found competent to stand trial and sane at the time of the offense, the trial court's conclusion that there is no "reasonable basis" for further state-authorized psychiatric expenses is proper. See Whisenhant v. State, 482 So.2d 1225, 1229 (Ala.Cr.App.1982), aff'd in part and remanded in part, Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983), on remand, Whisenhant v. State, 482 So.2d 1246 (Ala.Cr.App.1983), reversed on other grounds, Ex parte Whisenhant, 482 So.2d 1247 (Ala.1984). "Common sense, as well as sound legal authority, dictates that the trial judge not grant a psychiatric examination at state expense unless there is some reason to believe the accused was incompetent or insane." Bailey v. State, 421 So.2d 1364, 1367 (Ala.Cr.App.1982).

The Supreme Court's holding in Ake does not alter the result here. In Ake, the accused was ordered to undergo a pre-trial competency evaluation, but no examination was ever conducted to determine his criminal responsibility for the charged offense. "During Ake's 3-month stay at the state hospital, no inquiry had been made into his sanity at the time of the offense, and, as an indigent, Ake could not afford to pay for a psychiatrist." Ake, 470 U.S. at 72, 105 S.Ct. at 1091. The Supreme Court held that because Ake had made a threshold showing that his sanity at the time of the offense was likely to be a significant issue at trial, and because Ake had never had an evaluation to determine his sanity at the time of the offense, he was denied due process of law. Ake, 470 U.S. at 74, 105 S.Ct. at 1092. The defendant in the present case was evaluated by a psychiatrist on the issues of competency to stand trial and ultimate criminal responsibility. Ake does not guarantee him anything more. An indigent defendant does not have "a constitutional right to choose a psychiatrist of his personal liking or to receive funds to hire his own," Ake, 470 U.S. at 83, 105 S.Ct. at 1097; Isom v. State, 488 So.2d 12, 13 (Ala.Cr.App.1986).

II

The defendant was first advised of his Miranda rights in the early morning hours of December 8, 1985. He signed a waiver of rights form and stated in essence that he and the victim got into a fight with a knife and that he killed the victim in self-defense. Later that day, the defendant was again advised of his Miranda rights, signed a waiver form, and gave another statement which was substantially similar to the first.

On December 21, 1985, after the defendant had been incarcerated in the county jail almost two weeks, he sent word by a jailer that he wanted to talk to Sheriff Whittle, who was his first cousin. The defendant was brought from his cell to the sheriff's "living quarters" at the jail and, as shown by a transcribed tape recording of the conversation that occurred, the following then transpired:

"Doug [Sheriff Whittle]: All right, today's date will be December the 21st, 1985. The time is 10:05 P.M. I'm Doug Whittle of the Sheriff's Office in Geneva County. One of the jailers delivered word to me about an hour ago that a subject here in the county jail by the name of Bobby Whittle wished to talk to me at this time, so I've just gone back and got Bobby out of his cell and we've come in the living quarters, no one present but myself and Bobby in the living quarters at the jail and Bobby said that he wished to talk to me about this case, so before Bobby talked to me, I wanted to read him his constitutional rights and then let him talk, whatever he........ Now Bobby, you realize that you have the right to talk to a lawyer and have him with you while you are being questioned. If you want a lawyer and cannot afford one, the court will appoint one for you. If you wish to waive that right and talk to me at this time, any time you desire, you can stop and have a lawyer appointed for you. Do you understand these constitutional rights?

"Bobby [Defendant]: Yes sir.

"Doug: Now each and every time that we've talked to you before, we've had to sign a waiver of rights didn't we?

"Bobby: Yes sir.

"Doug: Are you familiar with all of your rights?

"Bobby: Yes sir.

"Doug: All right, at this time I'm gonna turn it over to you. You said you wanted to talk, you just talk to me about this case, now."

Thereupon followed an uninterrupted narration by the defendant of the events culminating in the death of the victim. The defendant's narrative related, in essence, that he "went out of [his] head, ... walked to the kitchen and got the big butcher knife and ... went back into the bedroom and proceeded to stab [the victim]." This version of the victim's death omitted any claim of self-defense. When the defendant had completed his narrative, the sheriff questioned him about details of the occurrence and played back the tape recording for the defendant. Upon hearing the tape, the defendant clarified or corrected several factual details and responded to the following questions by the sheriff:

"[Sheriff]: All right, Bobby, still keeping in mind now of your constitutional rights that I read to you to start off with before we ever started this taping, is this a true story?

"[Defendant]: Yes sir. I've lied enough about it.

"....

"[Sheriff]: OK. ... Is there anything else you want to add or change or say?

"[Defendant]: No sir.

"[Sheriff]: All right.

"[Defendant]: You can't change the truth."

The defendant claims that all three of his statements were inadmissible due to ineffective waivers of his right against self-incrimination. He maintains that the waivers given for the two December 8th statements were not knowing and intelligent due to his intoxication and mental retardation. He claims that the waiver preceding the December 21st statement was invalid because he had not been properly informed of his Miranda rights, and because he was influenced by his familial relationship with the sheriff.

A

The defendant testified that he had been drinking heavily on the day the victim was killed. He said that he took a number of nerve pills or sleeping pills after the incident and did not remember giving any statements after his arrest on December 8th. He was taken into custody about 4:00 a.m. and he made statements at 4:45 a.m. and 9:45 a.m. As this court observed in Musgrove v. State, 519 So.2d 565 (Ala.Cr.App.1986), "If the testimony of the defendant ... is accepted as true, the defendant could not have knowingly and intelligently waived his Miranda rights," 519 So.2d at 576. As we also observed in Musgrove and as is the case here, "However, several police officers testified that the defendant was not intoxicated from either alcohol or drugs," 519 So.2d at 576. Sheriff Whittle testified, "Well, you could smell alcohol, but so far as him being in a drunken manner, no, sir. He was very capable of moving around when he wanted to and he could talk with a good level head. He made complete sentences and he didn't stammer or talk thick-tongued."

"The standards for appellate review of a trial judge's determination of the admissibility of a confession were enumerated in Williams v. State, 461 So.2d 834, 838 (Ala.Cr.App.1983), reversed on other grounds, Ex parte Williams, 461 So.2d 852 (Ala.1984):

" '(1) The test for voluntariness involves a consideration of the totality of the circumstances. Haynes v. Washington, 373 U.S. 503, 513-14, 83 S.Ct. 1336, 1342-43, 10 L.Ed.2d 513 (1963). (2) "The admissibility of confessions is for the court, their credibility is for the jury." Phillips v. State, 248 Ala. 510, 520, 28 So.2d 542 (1946). (3) Where the voluntariness inquiry presents conflicting evidence and the trial judge finds that the confession was voluntarily made, great weight must be given his judgment. "(W)here there is a genuine conflict of evidence great reliance must be placed upon the finder of fact." Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 281, 4 L.Ed.2d 242 (1960). (4) This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the great weight of the evidence and manifestly wrong. Harris v. State, 280 Ala. 468, 470-71, 195 So.2d 521 (1967). (5) Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial court need only be supported by substantial evidence and not to a moral certainty. Thompson v. State, 347 So.2d 1371, 1375 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977), and cases cited therein. "Review of the court's...