Edwards v. State, 2 Div. 515

• Decision Date: 07 October 1971
• Docket Number: 2 Div. 515
• Citation: 287 Ala. 588,253 So.2d 513
• Parties: Harold Leon EDWARDS v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 513

253 So.2d 513

287 Ala. 588

Harold Leon EDWARDS v. STATE of Alabama.

2 Div. 515.

Supreme Court of Alabama.

Oct. 7, 1971.

Rehearing Denied Nov. 4, 1971.

Hubbard H. Harvey, Demopolis, for appellant

William J. Baxley, Atty. Gen., and Leslie Hall, Asst. Atty. Gen., for the State.

Valdhe F. Pitman, Oklahoma City, Okl., amicus curiae.

PER CURIAM.

The original opinion in this cause was withdrawn on rehearing and this opinion is substituted in place thereof.

Appellant was indicted in 1964 for murder in the first degree. He was tried, convicted, and sentenced to death. On appeal to this Court, his conviction was reversed and the cause remanded for a new trial. Edwards v. State, 279 Ala. 371, 185 So.2d 393.

In April, 1967, appellant was again tried, convicted, and sentenced to death. It is from such conviction and judgment that this appeal is perfected, under the provisions of the Automatic Appeal Statute, Act No. 249, General Acts 1943, page 217; Title 15, Section 382(1) et seq., Code 1940, 1955 Cumulative Pocket Part, 1958 Recompiled Code of Alabama.

The facts in this case were succinctly stated on first appeal, Edwards v. State, supra, and in the companion cases of Eaton v. State, 278 Ala. 224, 177 So.2d 444 and Coon v. State, 278 Ala. 581, 179 So.2d 710, and we deem it unnecessary to reiterate the facts here.

On this appeal, appellant first contends that the record shows that he had been confined to a mental institution at some prior time in his life and that it was error for him to be brought to trial without first having been examined by a psychiatrist.

The only reference in the record to the appellant's confinement in a mental hospital is contained in the report of the investigation requested by the court as to the indigency of the appellant after trial and in connection with appointment of appeal counsel. That part of the record containing such report, which was dated June 15, 1967, was filed by the clerk of the circuit court in response to an order by this Court based on one of several petitions for certiorari to correct the record. That part of the indigency report pertinent here is as follows:

'At the age of 17 subject was admitted by Court order to Central State Griffin Memorial Hospital, Norman, Oklahoma, where he was diagnosed as 'Sociopathic personality disorder with anti social reaction as manifester (sic) by stealing, lying, hostility, suspiciousness, poor judgment, and lack of insight.''

One of the defenses of the defendant was not guilty by reason of insanity. However, the defendant put no witnesses on the stand who testified that he was insane. Dr. C. E. Kimbrough, a physician of Linden, called as a witness for the State, expressed his opinion that the defendant was sane from his observation of the accused while treating him in the Marengo County Jail at Linden. There was no evidence to give the lower court sufficient doubt concerning his competence to stand trial as there was in Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815. The record does not show that Edwards filed any motion requesting an investigation of his mental condition other than in a petition for writ of certiorari (therein he moved the Court to issue a writ requiring the clerk of the lower court to correct the record by forwarding to this Court defendant's motion for psychiatric examination). In response to the Appellant's argument that the trial court committed error in forcing him to trial in Sumter County, Alabama, where it was allegedly impossible for him to get a fair trial, is unavailing. This Court fails to find in the record before it any motion pertaining to change of venue as provide for by Section 267, Title 15, Code 1940, Recompiled in 1958. However, defendant did file a petition for writ of certiorari for the Clerk to send up a motion for change of venue. The Clerk replied that there was no motion for a change of venue filed in connection with the second trial. It is axiomatic that an appellate court is bound by the record and cannot consider contentions in appellant's brief not supported by the record. Dannelley v. State, 130 Ala. 132, 30 So. 452; Walker v. State, 223 Ala. 294, 135 So. 438; Dockery v. State, 269 Ala. 564, 114 So.2d 394. Thus this Court must conclude that no such motion was filed on the second trial.

writ issued by this Court, the Clerk of the Circuit Court of Sumter County replied that there was no motion for psychiatric examination in the second trial. We must conclude from the Clerk's reply to the writ that no motion was made to determine the defendant's mental competence to stand trial after reversal of the case by this Court following the first trial.

In brief, it is argued that a confession was signed by the appellant without benefit of counsel; that it was error not to provide appellant with counsel before trial; and that it was error not to lay a proper predicate for the admission into evidence of the confession. There is nothing in the record to show that a signed confession was ever admitted into evidence on appellant's second trial. The following testimony of W. L. Stevens, an investigator for the State of Alabama, effectively disposes of appellant's contentions relating to any confession, to-wit:

'a. I met the plane, Melvin Stevens and I met the plane about 4:30 on December 18th, 1963. It was a State plane and Captain Godwin, Jack Hopper, this defendant, Edwards, and the defendant, Eaton, was on the plane along with two pilots. Melvin Stevens and I got Edwards and Eaton and placed them in--I was driving a State automobile--placed them in that automobile and drove them directly to the Linden jail at Linden, Alabama.

'Q. Who met you at the jail?

'A. Sheriff Wilmer Shields met me at the jail, and then we called you to come on over later.

'Q. And they were placed in the jail that night?

'A. They were.

'Q. Were they questioned that night?

'A. They were not.

'Q. The next day, were they questioned?

'A. They were.

'Q. Who did the questioning?

'A. You did some interrogation and I questioned them some and some of the other officers questioned them. You did most of the questioning.

'Q. Prior to the questioning that was done, what statement, if any, did I make to them?

'A. Edwards was the first subject questioned. He had a wound on the head. Dr. Cecil Kimbrough dressed this wound, and after he got through dressing the wound, you advised Mr. Edwards that he didn't have to make any statement, that any statement that he did make could be used against him in evidence. You advised him if he wasn't able to employ a lawyer, that you would appoint him a lawyer. He stated at that time that he didn't want a lawyer.

'Q. Did I tell him I would appoint a lawyer for him prior to any questioning?

'A. You did.

'Q. Was any offer of reward, any inducement or any threat made to him by me or any one else in your presence or his presence?

'A. There were not.

'Q. Did I advise him that anything he said could and would be used in a court of law?

'A. You did, before he made any statement.

'Q. Did he voluntarily say that he wanted to tell us how this happened?

'A. He did.

'Q. All right, what statement did he make there at that time?'

Following this predicate, W. L. Stevens then testified as to the statements made by the appellant relating to events which transpired from the time he (appellant) entered the State of Alabama, in the company of three other individuals, until the time the four were apprehended in the State of Texas.

No request was made for a hearing outside the presence of the jury on the voluntariness of the confession. As was our conclusion in Lokos v. State, 278 Ala. 586, 179 So.2d 714, under these circumstances, the requirements of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, were not violated.

We have carefully considered the argument presented in the amicus curiae brief filed with the permission of this Court. Basically, the argument presented therein is to the effect that the appellant was inadequately represented by counsel at trial and on appeal. This Court is not prone to condemn the trial tactics of counsel in the absence of a clear showing of improper or inadequate representation. Such a showing is not evident here. As for the appeal to this Court, some delay in the prescribed procedures was necessitated by the incomplete record initially filed and the subsequent completion thereof. Counsel for the appellant cannot be held accountable for this problem. We find no such inadequacy of counsel for the appellant.

The following appeared in the original opinion in this cause which was later withdrawn:

'Appellant complains in brief of the manner in which the qualification of the jurors was conducted by the trial court, citing Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, wherein the Supreme Court of the United States held that a sentence of death cannot be carried out of the jury that imposed it or recommended such punishment was chosen by excluding veniremen simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction.

'In brief, counsel for the appellant states, to-wit: 'The prospective jurors were asked if they would inflict capital punishment and I remember that certain jurors were not allowed to serve in the case due to the fact they stated that they did not believe in capital punishment.' However, the certificate of the clerk of the lower court contains the following statement: 'The Presiding Judge did qualify the jury as to Capital punishment but no one was excused for this qualification.'

'The actual proceedings relative to the court's qualification of the jurors are not transcribed in the record before this court. Based on the clerk's certificate, we cannot say that there was a violation of the rule pronounced in Witherspoon, supra.

'The rule is that argument in brief reciting matters not disclosed by the record cannot be considered on...