587 So.2d 1027 (Ala.Crim.App. 1991), 1 Div. 948, Fisher v. State

Docket Nº:1 Div. 948.
Citation:587 So.2d 1027
Party Name:Manson FISHER, Jr. v. STATE.
Case Date:March 01, 1991
Court:Alabama Court of Criminal Appeals

Page 1027

587 So.2d 1027 (Ala.Crim.App. 1991)

Manson FISHER, Jr.

v.

STATE.

1 Div. 948.

Court of Criminal Appeals of Alabama.

March 1, 1991

Page 1028

Rehearing Denied June 14, 1991.

Page 1029

David Schoen, Montgomery, for appellant.

Don Sigelman, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

Manson Fisher, Jr., was convicted of capital murder, for the murder of three persons by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Code of Alabama 1975. Following a sentencing hearing, the jury returned an advisory sentence of life without parole, and the trial court imposed that sentence.

I

Fisher argues that he was denied equal protection of the law, due process of law, a fair trial, and "various other state and federal constitutional statutory rights" by the prosecutor's alleged systematic and purposeful exclusion of women from the jury. The record indicates that defense counsel objected at trial to the striking of females from the jury, as follows:

"In addition, the State saw fit to strike twelve women out of the eighteen strikes, which on its face, is a systematic exclusion of women from the jury. And the defendant would allege and suggest to the Court that it simply because this is a capital case that may or may not could result in a sentence of death [sic]. And for that reason only those women were struck."

The prosecutor responded by stating that because women are "not a racially cognizable group defined under Batson," the law of that case should not apply. The prosecutor further stated that because the defendant was not female, "even if you extended Batson and applied it," Fisher would not have standing. Thereafter, the trial court overruled the objection to the striking of females.

Page 1030

Because the objection addressed the prosecutor's peremptory strikes and not the composition of the venire or the method for drawing a venire, the appellant's grounds alleging the denial of a jury composed of a fair cross section of the population, a violation of § 12-16-55, Code of Alabama 1975, and § 12-16-56, Code of Alabama 1975, are waived. See, e.g., Holland v. Illinois, 493 U.S. 474, 110 S.Ct. 803, 107 L.Ed.2d 905 (1990).

This court has previously held that the standards of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), do not extend to "gender based" peremptory strikes:

"This court recently addressed this issue in the case of Daniels v. State, [Ms. CR-89-447, September 21, 1990], So.2d (Ala.Cr.App.1990); see also, Stariks v. State, [Ms. CR-89-1113, October 26, 1990], So.2d [1301] (Ala.Cr.App.1990). In Daniels, we held that Batson does not extend to gender-based peremptory strikes.

" ' "Although the Court in Batson relaxed the evidentiary burden of Swain [v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) ], it offered no intimation that it was extending the equal protection safeguards involving peremptory strikes to gender: 'By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice.' 106 S.Ct. at 1724 (emphasis added). While the strictures of the Equal Protection Clause undoubtedly apply to prohibit discrimination due to gender in other contexts, there is no evidence to suggest that the Supreme Court would apply normal equal protection principles to the unique situation involving peremptory challenges.

" ' "....

" ' "Clearly, if the Supreme Court in Batson had desired, it could have abolished the peremptory challenge or prohibited the exercise of the challenges on the basis of race, gender, age or other group classification. A careful examination of the Batson opinion, however, leads this Court to the firm conclusion that, in light of the important position of the peremptory challenge in our jury system, the Court intended Batson to apply to prohibit the exercise of peremptory challenges on the basis of race only." '

"Daniels, So.2d [536,] quoting United States v. Hamilton, 850 F.2d 1038, 1042-43 (4th Cir.1988), cert. dismissed sub nom. Washington v. United States, U.S. [1094], 109 S.Ct. 1564, 103 L.Ed.2d 931 (1989), cert. denied, Hamilton v. United States, U.S. [1069], 110 S.Ct. 1109, 107 L.Ed.2d 1017 (1990). We see no reason to depart from this decision here."

Dysart v. State, 581 So.2d 541 (Ala.Cr.App.1990).

As to Fisher's claim that he was denied his right to a fair trial due to these strikes, we conclude that he has failed to meet his burden of proof in raising this claim. "The constitutional standards of fairness require that a defendant have 'a panel of impartial, "indifferent" jurors.' Irvin v. Dowd, 366 U.S. [717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961) ]." Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589 (1975). Moreover, a defendant has a right to " 'a tribunal both impartial and mentally competent to afford a hearing.' Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 652, 56 L.Ed. 1038 (1912)." Tanner v. United States, 483 U.S. 107, 125, 107 S.Ct. 2739, 2750, 97 L.Ed.2d 90 (1987). In determining whether an appellant was denied his right to a fair trial, a court must examine the totality of the circumstances. Dobbert v. Florida, 432 U.S. 282, 303, 97 S.Ct. 2290, 2303, 53 L.Ed.2d 344 (1977). Where a defendant charges that a practice is "so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial[,] if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over." Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1347, 89

Page 1031

L.Ed.2d 525 (1986). In the present case, the appellant "has directed us to no specific portions of the record, in particular the voir dire examination of the jurors, which would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected." Dobbert v. Florida, supra, 432 U.S. at 303, 97 S.Ct. at 2303. The jury list contained in the record indicates that seven females served on the jury and that one of the alternates was also a female. The appellant has failed to provide any indication that he was prejudiced by the State's exercise of peremptory strikes against females on the venire.

II

The appellant argues that the trial court erred in denying his motions for expert assistance or for funds to obtain independent expert assistance and, further, by denying him a hearing on this matter. Specifically, the appellant argues that a psychological or psychiatric expert was needed in order to assist him in developing his defense of intoxication and in order to evaluate his mental state.

"It has been repeatedly held by our courts that a denial of funds to pay defense experts for investigations and other assistance does not amount to a deprivation of constitutional rights. Dutton v. State, 434 So.2d 853 (Ala.Cr.App.1983); Thigpen v. State, 372 So.2d 385 (Ala.Cr.App.), cert. denied, 372 So.2d 387 (Ala.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 690, 62 L.Ed.2d 660 (1980). We have held that this includes psychiatric specialists. Tillis v. State, 292 Ala. 521, 296 So.2d 892 (1974); Dutton v. State, supra. A defendant has no right to receive a mental examination to determine his sanity at State expense whenever he requests one; absent such a right, the trial court is the proper screening agent as to such. Willis v. State, 441 So.2d 1030 (Ala.Cr.App.1983); Dutton v. State, supra; Allums v. State, 368 So.2d 313 (Ala.Cr.App.1979); Robinson v. State, 337 So.2d 1382 (Ala.Cr.App.1976)."

Nelson v. State, 511 So.2d 225, 237 (Ala.Cr.App.1986), affirmed, 511 So.2d 248 (Ala.1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).

The record indicates that the appellant filed two motions for psychiatric examination, which were denied by the trial court. However, on the same day, the trial court ordered that the appellant be admitted to Taylor Hardin Secure Medical Facility for examination to determine his competency to stand trial. The Lunacy Commission concluded that the appellant had no psychological abnormalities at the time of the crime and, further, that he was competent to stand trial. Thereafter, defense counsel filed a motion to provide funds for expert assistance, alleging that assistance was needed to review the report from the Lunacy Commission, to explain and interpret the report, and to advise counsel as to the appropriateness of the evaluations performed. Defense counsel also indicated that the expert assistance was needed for other reasons. A hearing was held on the matter, and the trial court denied the appellant's motion.

"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.'

Page 1032

Bailey v. State, 421 So.2d 1364, 1367 (Ala.Cr.App.1982)."

Whittle v. State, 518 So.2d 793, 794...

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