Clisby v. State

• Decision Date: 02 March 1982
• Docket Number: 6 Div. 576
• Citation: 456 So.2d 86
• Parties: Willie CLISBY, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 86

456 So.2d 86

Willie CLISBY, Jr. v. STATE.

6 Div. 576.

Court of Criminal Appeals of Alabama.

March 2, 1982.

Rehearing Denied April 20, 1982.

Stephen R. Arnold of Durward & Arnold, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen.; and Ed Carnes and William Dudley Motlow, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the capital offense of nighttime burglary during the course of which the victim is intentionally killed. Alabama Code 1975, Section 13-11-2(a)(4). Sentence was fixed at death.

I

This is the first case before this Court to challenge the constitutionality of the death penalty as construed by the Supreme Court of Alabama in Beck v. State, 396 So.2d 645 (1981), following the decision of the Supreme Court of the United States in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). The defendant argues that the procedural changes made by our Supreme Court in the method of sentencing one convicted of a capital offense from those specifically provided by statute constitutes an unconstitutional usurpation of legislative authority and violates the doctrine of separation of powers guaranteed by the constitutions of the United States and the State of Alabama.

This very issue was settled by our supreme court in Beck when it said: "Under the separation of powers doctrine, this Court cannot change the offense, but a change in procedure to comport with constitutional requirements is not impermissible." Beck, 396 So.2d at 662.

This finding is binding upon this court. "The decisions of the supreme court shall govern the holdings and decisions of the courts of appeals." Alabama Code 1975, Section 12-3-16.

Both the Florida and the Texas death penalty statutes survived attacks upon their constitutionality by virtue of judicial interpretation which allowed the consideration of any mitigating circumstance. Lockett v. Ohio, 438 U.S. 586, 606-7, 98 S.Ct. 2954, 2965-6, 57 L.Ed.2d 973 (1978). Also, the essential constitutional requirement of appellate review of sentencing was read into the Florida death penalty statute by the Florida Supreme Court even though no specific form of review was provided by statute. Proffitt v. Florida, 428 U.S. 242, 250, 96 S.Ct. 2960, 2966, 49 L.Ed.2d 913 (1976).

Further support for the constitutional validity of the Alabama Supreme Court's curative judicial construction of our capital punishment scheme in Beck, supra, is found in Jackson v. State, 337 So.2d 1242 (Miss.1976). In Jackson, the Supreme Court of Mississippi exercised its "inherent power to prescribe rules of procedure" to reconstruct that state's 1974 capital punishment statute to comport with decisions of the United States Supreme Court in 1976.

Despite the extensive "repair work" accomplished in Jackson, the federal courts have not held unconstitutional the action by the Supreme Court of Mississippi despite numerous opportunities to so do. At least one federal district court judge has held that the action of the Supreme Court of Mississippi was constitutionally permissible. Irving v. Hargett, 518 F.Supp. 1127 (N.D.Miss.1981). The Supreme Court of the United States has denied certiorari in three cases challenging the constitutionality of Mississippi's death penalty statute as modified by the Supreme Court of Mississippi. Jordan v. Mississippi, 444 U.S. 885, 100 S.Ct. 175, 62 L.Ed.2d 114 (1979), declining to review Jordan v. State, 365 So.2d 1198 (Miss.1979); Irving v. Mississippi, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979), declining to review Irving v. State, 361 So.2d 1360 (Miss.1978); Bell v. Mississippi, 440 U.S. 950, 99 S.Ct. 1433, 59 L.Ed.2d 640 (1979), declining to review Bell v. State, 360 So.2d 1206 (Miss.1978). Consequently, we find that the action of the Alabama Supreme Court in Beck, supra, is a constitutional and legitimate exercise of judicial power.

We specifically note that the defendant acknowledges that "(t)he trial and all proceedings were conducted in accordance with the rulings of the Alabama Supreme Court in Beck v. State, 396 So.2d 645 (1981)." Appellant's Brief, p. 6.

II

We find no error in the admission of the defendant's confession into evidence.

Even if the investigation had begun to focus on the defendant as he alleges, the evidence fully supports the view that the defendant was not a suspect until he, in being questioned by the police to clear up some discrepancies over his activities on the date of the homicide, "reached a point where he wanted to know what would happen to him if he told it." When the officers indicated that they would need to talk to a district attorney in order to answer that question and told the defendant that they could not promise him anything, the defendant requested to talk to the district attorney. All the testimony indicates that the defendant was free to leave until he made that inquiry.

All questioning ceased when the defendant asked the officers what would happen to him if he did make a statement and did not resume until after the defendant had voluntarily and intelligently waived his rights.

It is custody and not investigative focus or suspicion which marks the point at which the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), become mandatory. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Harris v. State, 376 So.2d 773, 774 (Ala.Cr.App.), cert. denied, 376 So.2d 778 (Ala.1979).

III

Each of the six veniremen who were excused for cause in this case was properly excused because each stated unequivocally that he could not vote for the death penalty under any circumstance or that his opposition to the death penalty would prevent him from impartially deciding guilt, or both. Full compliance was had with Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968); Keller v. State, 380 So.2d 926 (Ala.Cr.App.1979), cert. denied, 380 So.2d 938.

IV

The defendant raises several issues concerning the handling of various psychiatric matters by the trial court. He contends (A) that he was entitled to hire, at the expense of the state, a private psychiatrist to examine him for the purpose of expert testimony concerning certain mitigating circumstances; (B) that the use of the psychiatric report by the trial judge at the sentencing hearing violated his right to counsel; and (C) that his rights of confrontation and cross examination were violated by the trial court's consideration of two letters concerning the psychiatrist's conclusions about his mental condition.

Because of the nature of this case, the facts relevant to these issues are best set out in detail.

The murder occurred on November 7, 1979. The defendant was arrested on November 14, 1979, and a formal arrest warrant was issued the next day. On November 21, 1979, District Court Judge Jack Montgomery appointed attorney Jim Hard to represent the defendant.

On December 5, 1979, District Court Judge R.W. Gwin entered an order that the "Defendant is to be examined for psychiatric evaluation." On December 7, 1979, pursuant to Judge Gwin's order, the defendant was examined by Dr. Robert Estock. Dr. Estock was a private psychiatrist under contract with Jefferson County to evaluate prisoners where necessary. In a letter dated December 10, 1979, a social worker named Donna Click informed Judge Gwin of Dr. Estock's conclusions. Ms. Click's letter to Judge Gwin reads:

"On December 7, 1979, at the Jefferson County Jail the above named individual was evaluated by Doctor Robert Estock at your request. Doctor Estock feels this individual is competent to stand trial and aid in his defense. At this time there is no evidence of a psychosis.

Should you have any questions, please do not hesitate to call me."

On February 8, 1980, the defendant was indicted for the capital offense of nighttime burglary during the course of which the victim is intentionally killed. On February 22, 1980, Circuit Judge Wallace Gibson appointed attorney Stephen Arnold to represent the defendant in circuit court.

On February 29, 1980, the defendant was arraigned before Judge Gibson and pleaded not guilty. The record does not reflect entry of a plea of not guilty by reason of insanity. However, the record does show that at the defendant's sentence hearing both the assistant district attorney and defense counsel thought that a plea of not guilty by reason of insanity had been entered. The assistant district attorney thought that such a plea had been entered and withdrawn after the defendant was examined, while the defense attorney did not recall it "ever absolutely being withdrawn." On appeal, there is a strong argument made by the Attorney General that, even assuming that a plea was actually entered and had not been withdrawn, the plea of insanity was abandoned. Defense counsel made no mention of any insanity defense in his opening and closing arguments to the jury. At trial there was no evidence to support such a defense and the defense rested its case, without any defense, immediately after the State rested. Additionally, the defense did not request the court to instruct the jury on the issue of insanity.

On February 29, 1980, the day of arraignment, the defense filed a motion entitled "Defendant's Motion for Psychiatric Examination", which requested the court to empanel a lunacy commission pursuant to Code of Alabama 1975, Section 15-16-22. This motion was granted by Judge Gibson to the extent that he directed the Jefferson County Diagnostic Office "to have a psychiatrist evaluation on defendant's mental condition."

On or about March 10, 1980, the defense filed two more motions relating to the defendant's mental state. The first was a "Motion for Court Appointed Psychiatrist", which requested that the court appoint a psychiatrist "to conduct a clinical evaluation and examination of the defendant's capacity for criminal responsibility." The second was a "Motion for...