Ex parte Whisenhant
| Citation | 555 So.2d 235 |
| Parties | Ex Parte Thomas Warren WHISENHANT. (Re Thomas Warren Whisenhant v. State of Alabama). 88-10. |
| Decision Date | 15 September 1989 |
| Court | Supreme Court of Alabama |
Morris S. Dees and J. Richard Cohen, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
Thomas Warren Whisenhant was first convicted and sentenced to death in 1977 for the rape and murder of Cheryl Lynn Payton, which occurred in Mobile County. The facts of the murder are set out in Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.1979) , and the statement of facts in that opinion is adopted by this Court as if fully set out herein.
Whisenhant's first trial was conducted in Jefferson County, after a motion for change of venue was granted by the trial judge. The Court of Criminal Appeals reversed the conviction because of improper argument by the prosecutor. In 1981, Whisenhant was retried, this time in Mobile County, and was again convicted and sentenced to death. The Court of Criminal Appeals affirmed his conviction, but reversed his sentence because the prosecutor, in his opening statement at the sentencing phase, accused Whisenhant of having committed other crimes, evidence of which had not been introduced during trial. This Court then granted cross-petitions for certiorari and remanded to the Court of Criminal Appeals for a determination of whether the prosecutor's remarks were harmless error. The Court of Criminal Appeals ruled that the remarks were harmless error and thereby affirmed the sentence. On return from remand, this Court held that the error caused by the prosecutor's remarks was not harmless and remanded the case to the Court of Criminal Appeals with instructions that the case be remanded to the trial court for a new sentencing trial. After remand by the Court of Criminal Appeals, Whisenhant received another sentencing trial, and the jury recommended that he be given the death penalty. The trial court accepted the jury's recommendation and sentenced Whisenhant for the third time to death by electrocution. The Court of Criminal Appeals affirmed the sentence and we, by this opinion, affirm the judgment of the Court of Criminal Appeals.
Whisenhant raises the following issues:
(1) Was the trial judge's refusal to recuse himself a violation of the defendant's constitutional rights?
(2) Did the trial court commit reversible error by refusing to change the venue of the trial from Mobile County?
(3) Did Attorney General Siegelman violate the constitutional rights of the defendant when he called a press conference to discuss the case 15 days before trial?
(4) Was the trial court in error when it disqualified a veniremember because of her hesitancy to impose the death penalty?
(5) Did the prosecutor commit reversible error when he referred to the appeals process in closing argument?
(6) Did the trial court improperly refuse to give the defendant's requested jury instructions on nonstatutory mitigating circumstances?
(7) Did the admission of testimony of the victim's mother violate the defendant's constitutional rights?
Circuit Judge Ferrill McRae presided over the first and second sentencing trials and, in each case, accepted the jury's recommendation that Whisenhant be sentenced to death. Judge McRae also presided over the third sentencing trial.
Prior to the third sentencing trial, Judge McRae responded as follows to a motion in limine by the defendant regarding the admissibility of certain evidence offered by the state:
Based on these remarks, the defendant immediately made a motion for recusal, arguing that the judge had a fixed opinion regarding the mitigating circumstance of a capital offense "committed while the defendant was under the influence of extreme mental or emotional disturbance," Code 1975, § 13A-5-51(2), or a capital offense committed when the defendant could not "appreciate the criminality of his conduct" or "conform his conduct to the requirements of the law," Code 1975, § 13A-5-51(6).
The statements by the trial judge did not provide grounds for recusal. Rather, they occurred in response to a motion by the defendant to prohibit the family of Cheryl Lynn Payton from testifying. His comments were a reflection of his knowledge of the case and reflected no personal enmity. To disqualify a judge for bias, the bias must be shown to be personal. Ex parte Large, 501 So.2d 1208, 1210-11 (Ala.1986). A search of the record reveals no personal bias on the part of the trial judge towards the defendant.
In addition, the fact that the trial judge had presided over the defendant's previous two sentencing trials was not grounds for disqualification. A trial judge need not recuse himself solely on the ground that he was the "same trial judge who had heard the case and imposed the death penalty" in a defendant's prior trial. Ex parte Whisenhant, 482 So.2d 1241, 1245 (Ala.1983).
The defendant argues that the trial judge committed reversible error by refusing to change the venue of the trial; that for the same reasons the original trial was moved to Jefferson County from Mobile County, this trial should also have been moved; and that a high percentage of those living in Mobile County were predisposed to favoring the death penalty because of unfavorable publicity in the Mobile area regarding this case.
Code 1975, § 15-2-20(a), states the following:
To ensure that the defendant has a fair and impartial jury, it is not necessary that the veniremembers be totally ignorant of the facts surrounding the case. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). "It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." Irvin v. Dowd, 366 U.S. 717, 724, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961).
In 1977, the publicity surrounding the the murder of Cheryl Lynn Payton and the ensuing trial of Thomas Whisenhant was very intense. However, 10 years had passed from the time of the murder to the third sentencing trial. This 10-year period is significant, because it allowed the details of the case to fade from the minds of potential jurors. "That time soothes and erases is a perfectly natural phenomenon to all." Patton v. Yount, 467 U.S. 1025, 1033, 104 S.Ct. 2885, 2889, 81 L.Ed.2d 847 (1984). From the record, it is obvious that the passage of 10 years had dulled the memories of most of the veniremembers. The record reveals that although many jurors had a rudimentary knowledge of Whisenhant and what he had done, very few remembered whether he had received a sentence of life imprisonment or of death. Those who did remember the sentence were properly excused by the trial court.
Fifteen days before this third sentencing trial, Attorney General Don Siegelman called a press conference in Mobile. The press conference received extensive media coverage and was preceded by the issuance of a press release, which was circulated to the Mobile news media. At the press conference, Siegelman announced that an attorney from his office (Tom Sorrells) was joining the Mobile district attorney to "make this retrial the last one for Thomas Whisenhant." Siegelman said that he had instructed the state's attorneys to seek the death penalty because
The trial court, through careful questioning, was able to determine that all but one veniremember could not remember the attorney general's statements. The one veniremember who did remember them was excused by the trial judge. Therefore, we find that the attorney general's press conference did not deprive the defendant of his due process rights.
At the sentencing trial, the court allowed the defendant to question prospective jurors individually about what they knew about the specific facts of the defendant's previous trials. The defendant admits that individual voir dire was allowed, but contends that the court was unduly restrictive in not allowing him to question prospective jurors about the effect of pre-trial publicity on their ability to sentence the defendant in an impartial manner.
The jurors were also interviewed in panels of 12; during that process the defendant was restricted from asking questions about pre-trial publicity in front of these 12-member panels. This was done to ensure that these panels would not be tainted by the statement(s) of a single juror.
To those who had heard of the case from the media, Judge McRae then stated the following:
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