Ex parte Dobyne

• Decision Date: 04 August 1995
• Citation: 672 So.2d 1354
• Parties: 6 NDLR P 450 Ex parte Willie C. DOBYNE. (Re Willie C. Dobyne v. State). 1931662.
• Court: Alabama Supreme Court

Page 1354

672 So.2d 1354

6 NDLR P 450

Ex parte Willie C. DOBYNE.

(Re Willie C. Dobyne v. State).

1931662.

Supreme Court of Alabama.

Aug. 4, 1995.

Rehearing Denied Oct. 13, 1995.

Sharon Hindman, Russellville; Phillip Lisenby, Centreville; and Andrew A. Smith, Tuscaloosa, for Petitioner.

Jeff Sessions, Atty. Gen., and Frances H. Smith, Asst. Atty. Gen., for Respondent.

INGRAM, Justice.

Willie C. Dobyne was convicted of capital murder committed during the course of a robbery, and the trial judge sentenced him to death following the jury's recommendation of that sentence.

Linda Snipes and Leon Billingsley were both employees of the County Truck Stop outside Brent, Alabama. Early one morning in January 1991, Dobyne and his codefendant, Cleophus Dukes, went to the County Truck Stop. As they entered the truck stop, Dobyne shot Billingsley in the back with a shotgun, and Dukes shot Snipes in the upper chest and neck, also with a shotgun. Both victims died as a result of their wounds. After the shootings, Dobyne and Dukes took Snipes's purse and the cash register, containing approximately $200. They disposed of the cash register and shotguns.

In May 1991, Dobyne told his half-brother, Joshua Suttles, of his involvement in the shootings. In June 1991, Suttles told the sheriff about Dobyne's involvement in the shootings. Suttles agreed to be wired with a transmitter and to talk to Dobyne. After Suttles met and talked with him, Dobyne surrendered to the police.

As noted above, a jury convicted Dobyne and the court sentenced him to death. After Dobyne was convicted, Dukes pleaded guilty and was sentenced to life without parole.

Dobyne appealed his conviction and sentence to the Court of Criminal Appeals, raising 26 issues. That court affirmed the conviction and sentence. Dobyne v. State, 672 So.2d 1319 (Ala.Crim.App.1994). Because of Dobyne's death sentence, this Court automatically granted certiorari review. Rule 39(c), Ala.R.App.P.

Dobyne first argues that he was prejudiced because, he says, the jury pool did not represent physically disabled persons in Bibb County. Specifically, Dobyne contends that his right to a fair cross-section of the community was violated because, he says, physically disabled persons were systematically excluded from jury service in Bibb County. Dobyne contends that more than 5% of the population of Bibb County is physically handicapped, and that he was prejudiced by the removal of physically handicapped jurors because, he says, they would have been more likely to understand and give mitigating weight to the evidence of his own psychological impairments that was presented at the penalty phase.

Selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Section 12-16-55, Ala.Code 1975, also requires that all persons selected for jury service be selected at random from a fair cross-section of the population of the area served by the court and that all qualified citizens have the opportunity to be considered for jury service in this state and an obligation to serve as jurors when summoned for that purpose.

In order to establish a prima facie violation of the fair-cross-section requirement, a defendant must show (1) that the persons alleged to have been excluded constitute a distinctive group in the community; (2) that the representation of the group on venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury selection process. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). Rayburn v. State, 495 So.2d 733 (Ala.Cr.App.1986).

Dobyne has the burden to prove a prima facie case. To establish a fair-cross- section violation, Dobyne presented testimony of Dr. Donald Bogie, a professor of sociology and director of the Center for Demographics and Cultural Research at Auburn University. Dr. Bogie testified that, according to the 1980 census, physically disabled persons constituted 5.1% of the Bibb County population over 16 years old. ¹ He also testified that physically disabled people are looked upon as constituting a significant social category.

Dobyne also presented the testimony of R.L. Foster, the circuit clerk of Bibb County. Mr. Foster testified that upon request he and members of his staff routinely excuse physically disabled persons called for jury service in Bibb County. However, Mr. Foster also testified that a physically disabled person has never been excluded from jury service without having first requested to be excluded.

As noted before, selection of a petit jury from a representative cross-section of the community is essential to a fair and impartial jury trial. Without reaching the question whether the physically disabled constitute a "distinctive group," we think it clear that there was no violation of the fair-cross-section requirement in this instance, because physically disabled persons were selected at random from a fair-cross-section of Bibb County and were called for jury service. They were members of the jury pool from which Dobyne's venire and all other Bibb County jury venires were drawn. There was evidence presented that there was no systematic exclusion of physically disabled jurors; rather, the evidence revealed only that those physically disabled jurors excluded had themselves requested to be excluded from jury service. Under these circumstances, we conclude that Dobyne has failed to establish that the jury pool did not represent a fair cross-section of the community from which his jury was drawn. Therefore, Dobyne's argument on this issue is without merit.

Dobyne next argues that the trial court erred in refusing to provide him funds to pay for the expert assistance of a neurologist, who, Dobyne contends, could have presented compelling mitigating evidence that Dobyne suffered from brain damage.

In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the United States Supreme Court held that an indigent defendant is entitled, under the Due Process Clause of the United States Constitution, to expert psychiatric assistance when the defendant's sanity is a significant issue. The Supreme Court expressed concern that the indigent defendant have access to a "competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense." Ake, 470 U.S. at 83, 105 S.Ct. at 1096.

The Supreme Court did not address the precise issue whether an indigent defendant would be entitled to the assistance of a psychiatric expert when diminished mental capacity, rather than insanity, is the issue at trial, or when diminished mental capacity is the issue at a capital sentencing hearing.

However, in Dubose v. State, 662 So.2d 1189 (Ala.1995), this Court held that the Ake principles relating to assistance of experts are not limited to psychiatrists. The Ake principles, which are grounded in the due process guarantee of fundamental fairness, apply to assistance by nonpsychiatric experts when an indigent defendant makes a proper showing that the requested assistance is needed in order for the defendant to have "a fair opportunity to present his defense." Dubose, 662 So.2d at 1194. Specifically, a defendant, in order to be entitled to funds to pay for an expert, must show...