Ex parte State
| Citation | 486 So.2d 476 |
| Parties | Ex parte STATE of Alabama. (Re Jerome Vincent Berard v. State of Alabama). Ex parte Jerome Vincent BERARD. (Re Jerome Vincent Berard v. State of Alabama). 84-309, 84-310. |
| Decision Date | 20 December 1985 |
| Court | Alabama Supreme Court |
Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for petitioner/cross-respondent.
Ira De Ment and Ronald W. Wise, Montgomery, for respondent/cross petitioner.
This is an appeal following retrial. On this retrial, the defendant, Jerome Vincent Berard, was convicted in the Circuit Court of Montgomery County of a capital offense based on Code 1975, § 13-11-2(a)(10) (). Following the conviction by a jury, a sentencing hearing was held in the presence of the same jury, which returned a recommendation that the defendant be sentenced to death. A sentencing hearing was then held before the trial judge, who also found that the aggravating circumstances outweighed the mitigating circumstances and that the defendant should be sentenced to death. The Court of Criminal Appeals, pursuant to the mandates of Beck v. State, 396 So.2d 645 (Ala.1980), reviewed the record and the issues presented by the defendant and upheld the conviction of the capital offense, but remanded the case to the trial court for a new sentencing hearing. Berard v. State, 486 So.2d 458 (Ala.Crim.App.1984). On rehearing, the court denied the applications for rehearing from both the defendant and the State, but extended its original opinion in order to state that, on remand to the trial court, "this Court has clearly expressed its disapproval of a sentence to death in this case." Berard, supra.
Both the defendant and the State filed petitions for writ of certiorari to this Court. The defendant's petition for the writ is basically a request for this Court to review the issues concerning his conviction. The State's petition is a request for this Court to review the Court of Criminal Appeals' decision to remand the case for a new sentencing hearing. Because we are reversing the defendant's conviction of the capital offense and remanding his case for a new trial, we do not address the issues raised by the State with respect to the sentencing phase of the trial.
A complete statement of the facts in this case can be found in the opinion of the Court of Criminal Appeals following the first trial in this case, Berard v. State, 402 So.2d 1044 (Ala.Crim.App.1980). In that opinion, the Court of Criminal Appeals affirmed the defendant's conviction, but remanded the case for a new sentencing hearing. Before further action was taken, the conviction was reversed on authority of Beck v. State, supra, and that reversal necessitated a second trial, from which the present appeal was taken.
The defendant was charged with the capital murder of two young boys, ages 14 and 16, outside the Skatehaven skating rink in Montgomery in April 1978. At trial, the defendant entered pleas of not guilty and not guilty by reason of insanity, and he presented several expert witnesses on the issue of whether he was insane at the time of the crime. One of those witnesses was Dr. Chester Jenkins, a psychologist, who testified that the defendant was probably having a psychotic episode at the time he shot the two boys and was suffering from latent schizophrenia. On cross-examination, the district attorney questioned Dr. Jenkins in the following manner:
The defendant contends that the question of whether he would shoot somebody else was very prejudicial to his defense and was meant solely to inflame the passions of the jury. The State argues, on the other hand, that this is valid cross-examination of an expert witness on the issue of the defendant's insanity plea and, therefore, that the trial court did not err in allowing this testimony into evidence.
The State has cited several cases stating that both the defense and the State have a "wide latitude" in introducing evidence of a defendant's acts, declarations, or conduct, occurring both prior and subsequent to the crime, when the defendant has interjected the issue of insanity. See, e.g., Nichols v. State, 276 Ala. 209, 212, 160 So.2d 619, 621 (1964); Barbour v. State, 262 Ala. 297, 303, 78 So.2d 328, 333 (1954); George v. State, 240 Ala. 632, 637, 200 So. 602, 606 (1941). It is the State's contention that the question asked by the district attorney was used to shed light on the defendant's mental state at the time of the crime and to test the value and accuracy of the witness's opinion. See, Nichols, supra; George, supra. The State's argument appears to rest on the fact that there was a difference in the definition of the term "latent schizophrenia" as given by Dr. Jenkins and the definition of that term as found in standard psychiatric books. Thus, the State argues, the question asked by the district attorney was relevant for the jury's determination of the value to be placed on Dr. Jenkins's testimony.
Although the district attorney's question may have had some relevance in testing the value to be given to Dr. Jenkins's testimony, we must disagree with the State's interpretation of our prior cases. While the acts, declarations, and conduct of a defendant subsequent to the crime are admissible on the issue of insanity, the cases cited by the State make it clear that that principle relates to events occurring after the crime but before the trial. See, Nichols, supra (); George, supra ().
We have not been cited to any case in Alabama that approves of a prosecutor's asking a question about what the defendant is capable of doing in the future. We additionally note that this Court has previously stated that, as long as a prosecutor does not comment on the possibility that the defendant will commit future illegal acts, he may legitimately argue to the jury the need for law enforcement as a deterrent to crime. Ex parte Waldrop, 459 So.2d 959, 962 (Ala.1984); Cook v. State, 369 So.2d 1251, 1255 (Ala.1979). It would seem to be much more prejudicial to a defendant to allow the prosecutor to elicit this kind of testimony from a defense witness than it would be for the prosecutor to merely comment on that possibility in closing argument.
Our research has uncovered only one case which deals with this kind of situation. In State v. Barksdale, 590 S.W.2d 931 (Tenn.1979), the defendant had been charged with the crime of rape and had entered the plea of not guilty by reason of insanity. The psychiatrist called by the defense testified that the defendant was suffering from a mental disease which manifested itself in his inability to control his actions when he committed the rape. On cross-examination by the prosecution, the following took place:
590 S.W.2d at 932. (Emphasis added.)
The Tennessee Supreme Court reversed the defendant's rape conviction, relying on a previous case that held impermissible a prosecutor's comment in closing argument to the effect that "the defendant could 'go right out of here and kill again.' " 590 S.W.2d at 933 (quoting Covey v. State, 504 S.W.2d 387, 393 (Tenn.Crim.App.1973)). The court decided that this kind of testimony was highly prejudicial and "would be even more devastating than the advancement of that thesis by the prosecution as in the Covey case, supra." Barksdale, 590 S.W.2d at 933.
We, too, believe that this kind of question is unfairly prejudicial to the defendant. First, the cases cited by the State do not support the proposition that an expert may be questioned on the future conduct of a defendant. Therefore, there was no proper basis for the district attorney to ask such a question. Second, the central issue in the guilt phase of a capital murder trial is whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of the crime charged. Beck, 396 So.2d at 662. This kind of question could have easily shifted the focus of the jury's...
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