Alley v. State

Citation882 S.W.2d 810
PartiesSedley ALLEY, Appellant, v. STATE of Tennessee, Appellee.
Decision Date20 April 1994
CourtCourt of Appeals of Tennessee. Court of Criminal Appeals of Tennessee

Arthur E. Quinn, Timothy R. Holton, Memphis, for appellant.

Charles W. Burson, Atty. Gen. & Reporter, Joel W. Perry, Asst. Atty. Gen., Nashville, John W. Pierotti, Dist. Atty. Gen., Henry P. Williams, John W. Campbell, Chris B. Craft, Asst. Dist. Attys., Memphis, for appellee.

OPINION

WHITE, Judge.

Appellant, Sedley Alley, appeals as of right from the dismissal of his petition for post-conviction relief by the Shelby County Criminal Court. On March 18, 1987, appellant was convicted of and sentenced to death for the brutal killing of nineteen year-old Suzanne Marie Collins, a Marine lance corporal stationed at Millington Naval Base. 1 Appellant also received consecutive forty-year sentences for aggravated kidnapping and aggravated rape. On August 7, 1989, the Supreme Court of Tennessee affirmed the verdict in State v. Alley, 776 S.W.2d 506 (Tenn.1989) and, on February 21, 1990, ordered that his execution be carried out on May 2, 1990. 2 On April 25, 1990, appellant filed a pro se petition for post-conviction relief. Counsel was appointed, and, after a series of hearings in which the trial court ruled on various defense motions, evidentiary hearings were held on March 1st and 15th and April 5th, 26th, and 29th, 1991. On September 23, 1991, the trial court entered findings of fact and law denying the petition for post-conviction relief.

Appellant raises ten issues on appeal. Five issues are related to the allegations raised in the post-conviction petition: ineffective assistance of counsel, unconstitutional jury instructions, prosecutorial misconduct, unconstitutionality of the death penalty, and other trial errors. 3 Five issues concern post-conviction hearing procedures 4 and allege that the trial court erred in:

1. disallowing appellant an opportunity to make an offer of proof regarding the deficiencies in the medical and psychological evaluations at trial; (Issue V)

2. denying appellant an opportunity to introduce evidence regarding the deficiencies in the medical and psychological evaluations at trial; (Issue IV)

3. denying appellant a full and fair hearing on all available grounds for relief; (Issue VI)

4. failing to recuse himself; (Issue I) and,

5. denying appellant funds to retain an expert to review the medical records and conduct an analysis of appellant's medical conditions. (Issue III)

Since our conclusion is that this case must be remanded to a different trial judge for further proceedings, we will not, at this time, address the substantive issues raised by appellant in his post-conviction petition. Some background information about the trial is necessary, however, to understand the issues that arose during the post-conviction proceedings.

At trial, appellant raised an insanity defense. Two medical experts, Dr. Allen Battle, a clinical psychologist with considerable experience with multiple personality disorders, and Dr. Willis Henry Marshall, a psychiatrist at Middle Tennessee Mental Health Institute, testified that appellant suffered from a multiple personality disorder. 5 According to trial counsel, Dr. Battle was prepared to testify that when Alley murdered Collins, a personality other than the personality known as "Sedley" was in control and that the controlling personality was legally insane. However, approximately two weeks prior to trial, after a meeting with the prosecutor, Dr. Battle told defense counsel that he was no longer certain that a psychotic personality was in control at the time of the killing. Because he was not certified to give opinions of legal sanity or insanity in Tennessee, at trial on cross-examination, Dr. Battle stated that he could not testify that appellant was insane at the time of the murder. Dr. Marshall testified that appellant was suffering from a multiple personality disorder and that there was some evidence that a psychotic personality named "Power" was in control at the time of the murder.

The state presented expert testimony from Dr. Sam Craddock, a clinical psychologist from Middle Tennessee Mental Health Institute and Dr. Zillur R. Athar, a forensic psychiatrist in private practice. They diagnosed appellant as borderline personality with mixed substance abuse and malingering. Dr. William Brooks, III, a psychiatrist with Midtown (Memphis) Mental Health Institute and Dr. Lynne Zager, a clinical psychologist, found that appellant did not exhibit multiple personalities. Dr. William Gentry, Jr., two social workers, and a psychiatric technician also testified. None of the various state's experts supported an insanity defense.

I. Exclusion of Testimony

On post-conviction, appellant contends, among other allegations, that trial counsel was ineffective in the selection and use of experts, that counsel failed to provide the records and other information required by the experts, that counsel failed to communicate with the experts, and that, as a result, counsel did not develop a cohesive theory of defense and consequently, employed a fatally flawed trial strategy.

In its order entered July 16, 1991, the trial court, relying upon federal case law, 6 excluded the testimony of those psychiatric witnesses who testified at trial from the post-conviction hearing. The trial court reasoned that the performance of an expert witness is not a proper basis for post-conviction relief as the constitutional umbrella does not include the competency of expert witnesses. Moreover, the trial court denied counsel's request to present an offer of proof "since further inquiry into the performance of the psychiatric experts as a basis for post-conviction relief would be delving into an area that does not give rise to a constitutional violation."

On appeal, appellant contends that the trial court erred in denying him an opportunity to make an offer of proof. (Appellant's issue IV). Appellant argues that Rule 103(b) of the Tennessee Rules of Evidence requires a court excluding testimony to permit the making of an offer of proof in question and answer form upon request. 7

Appellant argues that the testimony excluded by the trial court was relevant to determining whether trial counsel had provided effective assistance of counsel. (Appellant's issue VI). According to appellant, the testimony would have shown that extensive miscommunication existed between counsel and the experts, that counsel failed to consider and utilize experts in determining whether appellant was able to make a knowing waiver of his Fifth Amendment rights, and that counsel failed to properly prepare the expert by not providing appellant's complete medical history to them. In addition, appellant argues that, since medical and psychological issues were the focus of the defense, he is unable to demonstrate prejudice as required by the second prong of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), without the excluded testimony.

The state does not refute the merits of these arguments but argues that issues IV and VI were not properly briefed and are, therefore, waived. We do not find that appellant waived either issue. Our court Rule 10(b) provides that "[i]ssues which are not supported by argument, citation to authorities, or appropriate references to the record will be treated as waived." (emphasis added). Appellant's brief contains six pages of argument relating to issues IV and VI. Those pages contain numerous references to the record. Rule 103(b) of the Tennessee Rules of Evidence is cited. In addition, to support his contention that he failed to receive a full and fair hearing of all available grounds for relief, appellant argues that he is unable to comply with the Strickland requirements absent this proof. Appellant has adequately briefed this issue pursuant to Rule 10(b). We will, therefore, consider the merits.

The trial judge first denied counsel's request to present an offer of proof in the evidentiary hearing held on April 29, 1991. The following exchange between appellant's counsel and the court took place:

MR. QUINN: Well, your Honor, You're cutting us off on getting Dr. Battle up here to testify about whether he really waffled. If I asked Dr. Battle, well, did you waffle, Dr. Battle--

THE COURT: What do you think a man with his ego would say? Listen, I know exactly.

MR. QUINN: And, Your Honor is ruling out, You are precluding us from getting into that. And even if You do stick with your ruling, Your Honor, we--

THE COURT: You are asking for an offer.

MR. QUINN: An offer of proof, that I think is allowed under the law, and would ask You to do it. Now, if Your Honor sticks with this ruling, I don't know how You want to do it, I've seen some Judges actually leave while an offer of proof is being made but--

[Other matters are discussed and later defense counsel asks the court to rule on the offer of proof.]

MR. QUINN: With regard to our offer of proof, Your Honor?

THE COURT: That's denied. I don't see the need. 8

The general rule is that "assuming an offer of proof has been seasonably made, it is error for the trial court to refuse to permit counsel to state what evidence he is offering." 89 A.L.R. "Offer of Proof--Ruling--Error" § 2 at 283 (1963). The purpose of an offer is two-fold. First, the proof informs the trial court what the party intends to prove so that the court may rule intelligently. Id. § 1 at 281. Second, an offer creates a record so that an appellate court can determine whether there was reversible error in excluding the evidence. Id.

In Tennessee, two rules address offers of proof. 9 The applicable evidentiary rule requires appellants who challenge rulings that exclude evidence to make an offer of proof unless the substance of the evidence is otherwise apparent. On appeal, an appellate court may not find that the exclusion of...

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