Flenory v. State
Decision Date | 25 October 1991 |
Citation | 588 So.2d 940 |
Parties | Bobby Gene FLENORY v. STATE. CR 90-900. |
Court | Alabama Court of Criminal Appeals |
William J. Willingham, Talladega, for appellant.
James H. Evans, Atty. Gen., and Gail Ingram Hampton, Asst. Atty. Gen., for appellee.
The appellant, Bobby Gene Flenory, was convicted after a jury trial of robbery in the first degree, a violation of § 13A-8-41, Code of Alabama 1975. He was sentenced under the Alabama Habitual Felony Offender Act to life in prison without parole. He presents three issues on appeal to this Court.
The appellant first contends that the trial court committed reversible error when it sustained the state's objection to a lay witness's testimony regarding the appellant's sanity.
The witness, Geraldine Flenory, the appellant's mother, was called as a state's witness and testified on direct examination that in her opinion the appellant knew the difference between right and wrong. The complained-of ruling came on cross-examination of Ms. Flenory by defense counsel, at which time the following occurred:
Judge Bowen, writing for this court in Ellis v. State, 570 So.2d 744, 757 (Ala.Cr.App.1990), stated:
In the instant case, the witness who testified concerning the appellant's sanity was his mother. She testified that the appellant resided with her. Without evidence of lack of an adequate opportunity to observe, residing together can be a sufficient predicate to allow a witness to offer an opinion as to the sanity of a person. During Mrs. Flenory's testimony, she testified that in her opinion the appellant was mentally ill on the date of the robbery (September 9, 1989); she also testified that in her opinion the appellant knew the difference between right and wrong. Further, a close examination of the record reveals that the witness answered the objected-to question before the trial court ruled.
The appellant next contends that the verdict of the jury was contrary to the law and to the evidence presented at trial. Specifically, the appellant contends that the jury should have found him not guilty by reason of insanity.
Section 15-16-2, Code of Alabama 1975, provides as follows:
The appellant argues that testimony elicited from the appellant's mother and from Gary Garner, a counselor at Cheaha Mental Center, that he was insane at the time the robbery occurred, should have been conclusive as to that issue. The law is otherwise.
Our Supreme Court stated in Smith v. Smith, 254 Ala. 404, 48 So.2d 546 (1950):
See Cunningham v. State, 426 So.2d 484 (Ala.Cr.App.1982). See also Pickett v. State, 37 Ala.App. 410, 71 So.2d 102 (1953), cert. denied, 260 Ala. 699, 71 So.2d 107 (1954); Carr v. State, 43 Ala.App. 642, 198 So.2d 791, cert. denied, 281 Ala. 716, 198 So.2d 798, cert. denied, 389 U.S. 877, 88 S.Ct. 175, 19 L.Ed.2d 165 (1967); Luster v. State, 45 Ala.App. 19, 221 So.2d 695 (1969); Bowen v. State, 386 So.2d 489 (Ala.Cr.App.), cert. denied, 386 So.2d 492 (Ala.1980); Breen v. State, 53 Ala.App. 588, 302 So.2d 562 (1974); Hafley v. State, 342 So.2d 408 (Ala.Cr.App.1976), cert. denied, 342 So.2d 412 (Ala.1977); Christian v. State, 351 So.2d 623 (Ala.Cr.App.1977).
Mrs. Flenory's testimony was in conflict as to the issue of the appellant's sanity. She testified that in her opinion he was mentally ill, but she also testified that she believed that the appellant knew the difference between right and wrong. We held in Nichols v. State, 276 Ala. 209, 160 So.2d 619 (Ala.1964), Nichols, 276 Ala. at 213, 160 So.2d at 621. See also Thompson v. State, 462 So.2d 753 (Ala.Cr.App.1984).
Gary Garner testified that he was employed as a counselor at Cheaha Mental Center and that in his opinion the appellant was suffering from paranoid schizophrenia on the day of the robbery. Further, evidence presented at trial tended to show that the appellant was under the care of a mental health care provider and that he was receiving a therapeutic drug at the time of the commission of this crime. Evidence further tended to show that the appellant's illness was controlled by the administration of this medication.
Where a defendant has periods of lucid behavior, even if he is sometimes insane, the law presumes that the crime was committed during a lucid interval. Westbrooks v. State, 492 So.2d 1023 (Ala.Cr.App.1984).
Finally, the conduct of the appellant and his demeanor immediately following the criminal activity can provide an inference of sanity. Cunningham v. State, 426 So.2d 484 (Ala.Cr.App.1982). The evidence at trial tended to show that after committing the robbery, the appellant fled the scene and went to a nearby apartment. After leaving that apartment and attempting to return to his house, the appellant was seen by police officers. When they called out to him, he began to run in an attempt to elude the officers. He ultimately ran into his own residence and closed the door. Upon gaining entry into his apartment, the officers were told by the appellant that he had been in bed asleep.
Judge Bowen, writing for this Court in Cunningham, supra, stated:
After careful examination of the record, we conclude that sufficient evidence was presented at trial from which the jury could reasonably find the appellant guilty of the charged offense.
Last, the appellant contends that the trial court erred in sentencing him under the Alabama Habitual Felony Offender Act. Specifically, he argues that his sentence is so disproportionate to the offense of which he was...
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