Atwell v. State

• Decision Date: 04 October 1977
• Docket Number: 4 Div. 526
• Parties: Herbert Kenneth ATWELL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 30

354 So.2d 30

Herbert Kenneth ATWELL v. STATE.

4 Div. 526.

Court of Criminal Appeals of Alabama.

Oct. 4, 1977.

Rehearing Denied Nov. 15, 1977.

Bryant F. Williams, Jr., Kenneth W. Quattlebaum, Ozark, for appellant.

William J. Baxley, Atty. Gen., and Milton E. Belcher, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

The appellant was convicted for the second degree murder of his mother and sentenced to life imprisonment. His defense was insanity.

I

Initially it is alleged that error was committed by the trial judge when he failed to determine that the appellant was competent to stand trial. The appellant concedes that he was given a constitutionally proper hearing on the issue of his sanity at the time of the offense and that he was granted a properly conducted trial by jury to determine his "present sanity" on August 26, 1975. However the appellant contends that the competency trial on August 26th resolved the question of his competency to stand trial at that time only and not at the time of his trial on the merits conducted almost seven months later. A review of the procedural background culminating in the appellant's conviction is therefore necessary.

On October 6, 1974, the appellant was arrested for the murder of his mother. Counsel was retained and petition was made to the Inferior Court of Geneva County for an investigation into the sanity of the appellant. Pursuant to Title 15, § 428, Code of Alabama 1940, Recompiled 1958, the Inferior Court held such a hearing, determined that the appellant was insane and ordered him committed to the custody of Searcy Hospital, an Alabama state hospital for the mentally insane.

In November of 1974, the committing judge was advised by a staff psychiatrist at Searcy that the appellant

"is sane, is mentally competent to stand trial, knows the difference between right and wrong, and is able to cooperate and communicate with counsel in his defense."

The appellant was then returned to the Geneva County jail to await further criminal proceedings.

In January of 1975, the appellant's retained attorneys were permitted to withdraw. One of the grounds cited by the attorneys requesting the withdrawal was that "there is a breakdown or lack of communication" between said attorneys and the appellant. New counsel was appointed by the circuit court to represent the appellant.

In February of 1975, the appellant was indicted and arraigned entering pleas of not guilty and not guilty by reason of insanity.

On June 9, 1975, the appellant was transferred to the Dale County jail because of "serious attempts at escape from the Geneva County jail" and because the jail was "unsafe insofar as the security of this defendant is concerned".

Upon motion by appellant's counsel, the Circuit Court of Geneva County held an insanity inquisition to inquire into the present mental condition of the appellant. On August 26, 1975, testimony was presented and a jury found the appellant to be sane despite the adverse opinion of a psychologist. Defense counsel then moved that the trial in chief be continued because the jury venire was in the courtroom and heard the arguments of counsel on the trial of the competency of the appellant and thereby rendered defense counsel unable to select an unbiased jury. The court found that it would not be possible to get enough talesmen to try the case at that term of court due to the man power limitations of the sheriff's department to serve the necessary subpoenas for the additional jurors. Therefore the trial judge granted the request of the appellant and continued the trial until the next term of court.

On January 28, 1976, appellant's appointed counsel filed a motion to withdraw. One of the reasons cited in the motion was that:

"4. This Attorney and the other Court-Appointed Counsel in this case have been unable to establish any relationship with this Defendant whereby a proper defense can be planned, because even though he has been adjudged sane by the Court, the Defendant continues to advance theories of defense which have been characterized by a Psychiatrist as delusional and symtomatic of paranoid schizophrenic."

Additional grounds cited in support of the motion to withdraw were that the appellant had filed a complaint with the Grievance Committee of the Alabama State Bar alleging the improper conduct of his attorneys, that the appellant was not indigent and that counsel's bill was already over $1,075.00. In a separate letter addressed to the circuit court, one of the appellant's attorneys noted that he was of "the firm opinion that he (the appellant) is not mentally capable of standing trial and due to his attitude we are having great difficulty in preparing any defense for him". The motion to withdraw was granted.

The appellant employed new counsel and on February 17, 1976, this counsel filed a motion for a change of venue. The motion was granted and the proceedings were transferred to Dale County.

On March 16, 1976, the trial of the appellant began. Two days later the jury found him guilty of murder in the first degree and fixed his punishment at life imprisonment.

The appellant contends that there was never a determination of his "present ability" to stand trial because of the seven month interval between his competency hearing and his trial on the merits. The appellant alleges that during that seven month period there occurred events which would generate reasonable doubt as to whether he was competent to stand trial and participate in the preparation of his defense. The events cited by the appellant which would generate such a reasonable doubt are: (1) Five months after the sanity trial appellant's court-appointed counsel submitted motions to withdraw from the case. Both motions were identical and among the grounds asserted were two which relate to this issue: (a) that the appellant had "deluged" his attorneys with requests to subpoena "extremely numerous witnesses in his behalf, ranging from Secretary of State, Henry Kissinger, and the Governors of several States to the entire police department of various cities and towns in the area of the trial"; and (b) that counsel was unable "to establish any relationship with the defendant whereby a proper defense can be planned because . . . the defendant continues to advance theories of defense which have been characterized by a psychiatrist as delusional and symtomatic of paranoid schizophrenia". (2) One of the two attorneys permitted to withdraw, in a letter to the court in support of the motion, stated that he and another court-appointed counsel "are of the firm opinion that he (appellant) is not mentally capable of standing trial and due to his attitude we are having great difficulty in preparing any defense for him". (3) At the sanity hearing the only expert to testify was a psychiatrist who concluded that the appellant's "mental capacities are impaired to advise counsel and to stand trial at the present time because he is undergoing this illness at present".

The issue we must confront is whether a determination of competency to stand trial made approximately seven months prior to trial is an adequate and sufficient determination that the accused was competent to stand trial under the circumstances of this case. This will require a determination as to whether there were facts before the trial judge which would raise a reasonable and bona fide doubt of the mental competency of the appellant to stand trial.

The competence of an accused to stand trial is determined by whether at the time of the trial he has sufficient present ability to consult with his attorney with a reasonable degree of rational understanding and whether he has rational as well as factual understanding of the proceeding against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Seibold v. Daniels, 337 F.Supp. 210 (D.C.Ala.1972).

When the issue of competency to stand trial is properly raised or when facts are present before the trial judge which create a reasonable and bona fide doubt as to the mental competency of the accused to stand trial, there is no question but that the trial judge must take steps to assure a reasonable legal determination of such questions. Where reasonable cause is shown to believe that the accused may be incompetent to stand trial, the judge, under Alabama law, has two alternatives: (1) He may empanel a jury as provided by Title 15, § 426, Code of Alabama 1940, Recompiled 1958, or (2) he may, within his discretion, refuse to grant relief under § 426 and establish some alternate method of determining the competence of the defendant to stand trial. Seibold, supra; Brinks v. Alabama, 465 F.2d 446 (5th Cir. 1972).

Where a Section 426 hearing has been held, the trial court should make a second determination of the defendant's competency to stand trial under the same circumstances as an original determination would be required, that is, where there exist facts which raise a reasonable and bona fide doubt of the defendant's competency. Whether a determination should be held does not turn on whether a timely request is made by the defendant. State v. Bradley, 102 Ariz. 482, 433 P.2d 273 (1967); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); United States v. Cook, 418 F.2d 321 (9th Cir. 1969).

Since the appellant was determined to be competent on August 26, 1975, those facts must be found to exist between that date and March 18, 1976, the date on which the appellant was found guilty or there must be additional facts which were not presented at the competency trial.

Earlier in this opinion we have listed the events cited by the appellant which it is argued would raise a reasonable doubt of his competency. Several of these facts had been previously submitted to a jury, weighed by them, and when taken collectively adjudged not to raise a reasonable doubt of the appellant's competency to stand trial. Those were (1) the fact that the appellant...