Free v. State, 3 Div. 880

• Decision Date: 10 April 1984
• Docket Number: 3 Div. 880
• Citation: 455 So.2d 137
• Parties: Lewis Lamar FREE, alias v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 137

455 So.2d 137

Lewis Lamar FREE, alias v.STATE of Alabama.

3 Div. 880.

Court of Criminal Appeals of Alabama.

April 10, 1984.

Rehearing Denied May 22, 1984.

Certiorari Denied July 27, 1984

Alabama Supreme Court 83-965.

Johnnie B. Byrd, Jr., Brewton, for appellant.

Charles A. Graddick, Atty. Gen. and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Lewis Lamar Free was indicted on one charge of murder and twelve charges of attempted murder.The thirteen cases were consolidated for trial and the jury found the appellant"guilty as charged" in each indictment.The trial judge sentenced the appellant to six "life terms" in the penitentiary.

On the morning of November 20, 1981, J.D. White, the warden at Holman prison, saw the appellant park his blue and white pickup truck beside Highway 21 near Wet Weather Creek Bridge.The bridge is located north of Atmore and just south of Holman prison and G.K. Fountain Correctional Center.

At approximately 9:30 a.m., Sherman Sanks and his wife, Merle, were traveling south on Highway 21.As their vehicle approached the bridge, the Sanks saw the appellant standing beside his truck pointing a gun directly at their vehicle.The appellant fired a shot which hit the lip of the hood on the Sanks' vehicle.

John Shook and his wife, Nellie, were proceeding north on Highway 21 as they approached the bridge.After they had passed the appellant standing beside the road, the Shooks' heard what sounded like an "explosion".The rear windshield of their vehicle was shattered and the front windshield had a hole in it.The bullet the appellant shot into the Shooks' vehicle skinned the top of Mrs. Shook's ear.

The next vehicle to pass by the appellant was driven by Glenn Williams.The passengers in this north bound vehicle were Glenn Williams' wife, Ann (who was sitting on the passenger side of the front seat), Williams' niece, Teresa Blair(who was sitting in the left rear seat), Williams' mother, Myrtle (who was sitting in the center rear seat), Williams' sister, Bernice Harvill(who was sitting in the right rear seat) and Williams' great niece, Candida Harvill(who was sitting in Bernice Harville's lap).As their vehicle approached the appellant, Glenn and Ann Williams noticed the appellant was holding a gun.Once their vehicle had passed the appellant, Ann Williams told her husband she thought the appellant was going to shoot.Glenn Williams instructed everyone to duck.An instant later the appellant shot through the windshield of their vehicle.The bullet struck and killed Bernice Harvill.

As Robert Moye drove south on Highway 21 toward the bridge, he saw the appellant aiming his gun at him.Moye, realizing the appellant might shoot, laid down in the seat until his vehicle had passed the appellant.Then Moye looked in his rear view mirror and observed the appellant doing something to the gun.A few seconds later, Moye heard a shot but neither he nor his vehicle was struck.

Sherry Morris was traveling south on Highway 21 as she approached the appellant near the bridge.When she saw the appellant, he was aiming a gun at her and she laid down in the floorboard of her vehicle.Morris then heard a shot but it did not hit her vehicle.

Around 9:40 a.m., McArthur Davis, an investigator for the Department of Corrections, was at his office at Fountain Correctional Center when he overheard a radio conversation about gunfire at Wet Weather Creek Bridge and the need for an ambulance.Davis left and drove to the scene on Highway 21.Davis saw the appellant's truck parked near the bridge, so he parked his vehicle approximately 140 yards away.

Seconds later, a shot rang out which hit the hood of Davis' vehicle.Davis lay down in the front seat just as he heard another shot.All that Davis could see was the barrel of a gun protruding from the corner of the window of the appellant's truck.A third shot hit and shattered the left front headlight of Davis' vehicle.

At this point, Davis got out of his vehicle.Several shots were then exchanged between Davis and the appellant over a period of fifteen minutes.Davis instructed the appellant to exit the truck which he declined to do.Several Department of Corrections officials and Atmore police officers finally subdued the appellant who was lying in the floorboard of the truck.In and around the truck, the police found a .30-.30 lever action rifle, an empty twenty shell box of ammunition, nineteen spent hulls and one bent round of ammunition.

An autopsy was performed on the body of Bernice Harvill and the cause of death was determined to be a gunshot wound to the head.The rifle found in the appellant's truck, which the appellant had purchased in October of 1981, was determined to be the rifle which fired the bullet which killed Bernice Harvill, and the rifle which fired the spent ammunition found in and around this appellant's truck.

I

A

The appellant, citing Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 1866, 68 L.Ed.2d 359(1981), contends that the trial court exceeded its authority by ordering an inquiry into the appellant's sanity at the time of the commission of the crimes.We do not agree with this contention for two reasons.

First, on March 30, 1982, at arraignment, the appellant pled not guilty by reason of insanity in each case.Certainly, the appellant's sanity, at the time of these offenses, was placed at issue, and was therefore the subject of proper inquiry, once the appellant entered his pleas of not guilty by reason of insanity.

Secondly, on April 27, 1982, defense counsel filed a motion with the trial court stating "... that the Defendant is presently insane and has been before and since the commission of the crime for which he is charged" and requesting an inquiry be held to ascertain "... whether he is sane or insane."(R. 522)(Emphasis added).

The language contained in defense counsel's motion clearly indicates the appellant's sanity at the time of these crimes was placed in question.It is clear to this court that when the trial court ordered a "complete mental evaluation ... to determine whether or not this Defendant is presently insane, was insane on the date of the crimes alleged to have been committed by him and whether or not this Defendant is now competent to stand trial for said criminal acts,"he was merely granting defense counsel's motion and giving him what he had requested.(R. 524).We are further convinced this is true because defense counsel never objected to the trial court's order.

Therefore, the trial court properly ordered an evaluation of the appellant's sanity at the time of the commission of these offenses.

I

B

Prior to trial, defense counsel filed a motion in limine to prohibit the prosecution from introducing evidence of psychiatric or psychological evaluations of the appellant due to the fact he was invoking his privilege of confidentiality as provided in § 34-26-2,Code of Alabama 1975.The trial court denied this motion and appellant claims this to be reversible error.

The prosecution in its case-in-chief did not attempt to present any evidence or testimony concerning the subject of the motion in limine.It was the appellant in his case-in-chief who first brought out evidence of these evaluations during the testimony of Dr. DeFrancisco.Then on rebuttal, the prosecution introduced the testimony of Dr. Salillas concerning these evaluations.

This issue was discussed and decided by this court in Magwood v. State, 426 So.2d 918(Ala.Cr.App.1982).In that opinion, Judge Barron wrote:

"We hold that by actively pursuing an insanity defense and introducing the deposition of Dr. Rudder as a defense witness, appellant waived any potential psychotherapist-patient privilege or privilege against self-incrimination against the subsequent testimony of Dr. McKeown on rebuttal.

'As the Court of Criminal Appeals notes in its opinion, there are states which hold that by pleading insanity, a criminal defendant waives his statutory privilege against disclosure of a 'psychotherapist-patient communication.'The better reasoned cases hold, however, that there must be some presentation of evidence of insanity in addition to the plea, in order for the question of 'waiver' to arise....'Ex parte Day378 So.2d 1159(Ala.1979), at p. 1162.

"To hold otherwise would be to allow appellant to call all those psychotherapists or psychiatrists, who examined appellant under State order, he desired.Then, on a claim of privilege, appellant would be able to prevent the State from calling experts who examined him for the same purpose on rebuttal to refute the appellant's defense.Ex parte Day, supra;Estelle, supra, and cases cited therein."

Magwood, supra at 927.

Since the appellant's counsel initiated the inquiry into the appellant's sanity, appellant waived any privilege of confidentiality he may otherwise have had.Therefore, it is unnecessary for us to decide whether the trial court's decision to deny appellant's motion in limine was error.

II

At approximately 5:00 p.m. on the day of the appellant's arrest, Officers Ronnie Cribbs and James Dixon went to the appellant's cell.He was asleep and someone awakened him.The officers advised him of his Miranda rights which he indicated that he understood.The waiver of rights was read to the appellant which he signed.At this point, the appellant gave a statement which was reduced to writing by Officer Cribbs.No threats, coercion, offer of reward or other inducements were made in order to obtain his statement.Cribbs read the statement back to the appellant and gave it to him to read.The appellant then signed the statement.

The appellant contends the State did not prove his confession was voluntary because the officers did not know the appellant's blood alcohol content at the time the statement was taken or if medication had been administered to him on the day his statement was taken.The only evidence the appellant presents in support of this...