Buttram v. State

• Decision Date: 26 October 1976
• Docket Number: 7 Div. 497
• Citation: 338 So.2d 1062
• Parties: Jerry BUTTRAM v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1062

338 So.2d 1062

Jerry BUTTRAM v. STATE.

7 Div. 497.

Court of Criminal Appeals of Alabama.

Oct. 26, 1976.

Roger Killian, Fort Payne, for appellant.

William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.

LEIGH M. CLARK, Supernumerary Circuit Judge.

On August 28, 1973, on an indictment charging murder in the first degree, appellant was convicted of manslaughter in the first degree of Harold W. Culpepper and sentenced to imprisonment for ten years. Explanation for the interval of more than three years between the conviction and this opinion is to be found, partly at least, in the change of mind of defendant after he had notified the court that he did not desire an appeal, and proceedings subsequent to such change of mind. On a hearing on a petition for habeas corpus by appellant herein, the United States District Court for the Northern District of Alabama, Middle Division, found that he had changed his mind and his court appointed counsel had given the court timely notice by letter that he desired to appeal his conviction and the court 'instructed court-appointed counsel to prepare an order appointing counsel for the appeal and to file an application for a free transcript,' but for 'unexplained reasons, these procedures were not followed.' The United States Court granted the petition for habeas corpus subject to conditions in the alternative: (1) the State could retry petitioner, (2) the State, if it chose to do so, could grant petitioner an out-of-time appeal, or (3) the State could consider that defendant had given timely notice of an appeal. Thereafter, on motion of the State of Alabama through the Attorney General, the trial court entered an order declaring defendant indigent, directing the preparation of a transcript, without expense to appellant, and appointing his counsel on the trial as his counsel on appeal. Briefs have been filed, and the appeal was orally argued and submitted on the merits on October 4, 1976. We will proceed to a determination thereof on its merits.

Defendant pleaded not guilty and not guilty by reason of insanity. In advance of trial, a hearing was conducted on defendant's motion for 'determination of defendant's mental competency.' In the motion, defendant had requested that the defendant be made available for the 'Dekalb County Mental Health Center to administer a test to determine the intelligence quotient of the defendant prior to the court's hearing the main motion herein.' The request was granted and defendant was analyzed by a psychometrist at the DeKalb County Mental Health Clinic. On the hearing of the 'main motion,' the report of the psychometrist was offered in evidence, but the State objected to it on the ground that it was hearsay, and the court sustained the State's objection. The report showed an intelligence quotient of sixty-six, which placed defendant in the 'mild mentally retarded category of intellectual functioning,' which according to the report indicated that he functioned somewhat like a ten--eleven year old child. The motion expressly relied upon 'Title 15, Chapter 21, Article 2, Code of Alabama.' Section 426 thereof provides in part as follows:

'If any person charged with any felony be held in confinement under indictment, and the trial court shall have reasonable ground to doubt his sanity, the trial of such person for such offense shall be suspended until the jury shall inquire into the fact of such sanity, such jury to be impaneled from the regular jurors in attendance for the week or from a special venire, as the court may direct . . .'

The quoted portion of the statute is the controlling provision as to this case.

In determining whether there is 'reasonable ground to doubt his sanity,' or to doubt a 'defendant's mental competency' to stand trial, the trial court is not necessarily restricted by general principles of evidence. It has the right to consider, and should consider, any matter that comes to its attention that bears upon the question of defendant's sanity or his competency to stand trial. At times, it may be that the fact that proffered testimony is hearsay would warrant a rejection of it as incredible, but this would not always be correct. For instance, while a court is considering a question whether a defendant is mentally competent to stand trial, a recent written report of an eminent physician, a specialist in mental disorders, to the effect that he has carefully examined defendant and found him to be an idiot, should not be rejected merely because it is in hearsay form, especially if the court had no reason to question the authenticity of the report. The usability of reports of experts, without the attendance in court of the expert in connection with proceedings under Code of Alabama, Title 15, § 426, is vivified by the provision thereof as follows:

'. . . When the superintendent of the hospitals shall be of the opinion that such person is so restored he shall forthwith, in writing, inform the judge and sheriff of such court of the fact, whereupon such person must be remanded to prison on an order of such judge, and the criminal proceedings resumed. . . .'

Our review of the record convinces us that, although the report of the psychometrist was entitled to consideration by the trial judge in the absence of any challenge to its authenticity or reliability, the trial court did in effect consider it in the conclusion it reached in denying defendant's motion 'for a judicial determination of the mental competency of the defendant.' Defendant's counsel made it clear to the court that he had nothing upon which to base the motion other than the report of the psychometrist. During the colloquy among the court, counsel for defendant and counsel for the State, the trial court stated:

'Assuming for the sake of argument that it would be admissible, and I know what counsel has said as to its contents, there would be nothing in what counsel has stated thus far that would tend to prove that the person was mentally incompetent, as far as the criminal culpability under Alabama law is concerned.'

Thereafter counsel for defendant correctly distinguished between mental competency to commit a crime and mental competency to stand trial, and subsequently the court said:

'However, the statute, as I recall the statute to which you refer, there must be a showing from which the Court would conclude that such a determination would be indicated.'

As we view the record, the trial court concluded that the report of the psychometrist, which is made a part of the record and which was exhibited to the trial court, was not sufficient to cause the trial court to have reasonable ground to doubt defendant's sanity, or his mental competency to stand trial.

That a defendant is put to trial without a judicial determination of his sanity, or his mental competency to stand trial, is not ground for a reversal of a conviction. In such an event, the appropriate procedure is for judgment to be suspended and the case remanded to the trial court for a determination thereof, if there is sufficient basis for requiring such a determination. Edgarson v. State, 53 Ala.App. 581, 302 So.2d 556; Pierce v. State, 52 Ala.App. 422, 293 So.2d 483, writ quashed, 292 Ala. 745, 293 So.2d 489, judgment vacated after remand, 57 Ala.App., 633, 330 So.2d 615; Buttram v. State, 57 Ala.App. 422, 329 So.2d 111, after remand, 57 Ala.App. 425, 329 So.2d 114, ...