Herbert v. State, 6 Div. 258

• Decision Date: 21 February 1978
• Docket Number: 6 Div. 258
• Citation: 357 So.2d 683
• Parties: Gene A. HERBERT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 683

357 So.2d 683

Gene A. HERBERT v. STATE.

6 Div. 258.

Court of Criminal Appeals of Alabama.

Feb. 21, 1978.

Rehearing Denied March 21, 1978.

Quentin Q. Brown, Jr., Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The appellant was indicted for the first degree murder of his pregnant wife. Prior to trial the appellant was ordered committed to Bryce Hospital for an investigation of his sanity pursuant to Title 15, Section 428, Code of Alabama 1940, Recompiled 1958. Approximately three months later the Forensic Evaluation Board of that hospital found that the appellant was competent to stand trial, but that he "was probably psychotic and not legally sane at the time of the alleged crime". A jury found the appellant guilty of murder in the second degree and fixed his punishment at twenty-five years' imprisonment. Both at trial and on appeal the appellant is represented by court appointed counsel. Additionally, the appellant was represented by retained counsel at trial.

The only contention presented on appeal is that it was error for the trial judge to refuse to give the affirmative charge and instruct the jury that the evidence of insanity was so clear and the proof so strong and undisputed that they were bound to accept such testimony of insanity. Because of the nature of this issue, it is important to detail the testimony of each witness bearing on this point.

On the 28th of May, 1975, the deceased was killed by a blast from a shotgun fired at a distance of less than two feet. She was found in the bathroom of the house where she and her husband, the appellant, lived. The murder weapon was found lying on the floor outside the bathroom door.

When Patrolman William C. Cater of the Birmingham Police Department arrived at the scene of the crime, the appellant drove up behind the patrol car. Officer Cater asked the appellant if he called the police and the appellant stated that he shot his wife and she was in the bathroom. Cater testified that the appellant appeared calm and answered questions for the police report.

A Jehovah's Witnesses' bible was found open on the dining room table in the house. Two empty shotgun shells were recovered from the scene. A live shell was found in the shotgun. A hole made by a shotgun blast was noticed in the ceiling of the house over the dining room table.

Detective Charles M. Melton of the Birmingham Police Department interviewed the appellant at the Birmingham City Jail on the day of the murder. During their conversation, Detective Melton made the following notes which were as close to what the appellant actually said as he could manage.

"Last night you could hardly breathe. Wife's breath hurt him. Woke up and found himself breathing like life. I heard voices. One more thing we would have to do before we transformed into one another. Wife wanted to lay down longer. Feels wife was possessed. Wife got up. Wife asked bacon or sausage. Wife put book on table. Poured orange juice. Voice told him about transition.

Got gun from closet, fired one in ceiling, and then fired at wife. (Signed) Gene A. Herbert."

After reading and signing Detective Melton's notes, the appellant added the following statement in his own handwriting.

"There are some things that happen that I feel was controlled me. I felt my wife had a control over my mind. (Initialed) G. A. H."

Detective Melton testified that the appellant was calm, that "he didn't appear to be outwardly upset and nervous". Though the appellant was carrying on a completely coherent conversation with Detective Melton, Melton did not consider the statement to be one of a rational and sane individual. Detective Melton stated that the appellant was a Jehovah's Witness and that the appellant told him that he didn't trust attorneys.

The state then rested and the appellant's records from Bryce Hospital were admitted into evidence by the defense without objection.

The defense presented the testimony of three employees of U. S. Steel Corporation who had worked with the appellant before the murder. A. B. Jones stated that he worked with the appellant on a daily basis as a wireman for the past three years. Mr. Jones testified that until about three months before May 28, 1975, the appellant was quiet, well-mannered, and very cooperative; that he read his bible a lot and was nonviolent. However, about two or three months before the murder the appellant's personality "completely changed".

" . . . (H)e was different. He would stare. And he couldn't comprehend. He would ask you a question and you would tell him, and he couldn't comprehend it. He definitely changed * * * And he would start home and then he would come back. And then he would go and come back."

The appellant got his work shifts confused and reported for work at the wrong time. Although he had previously been a good worker he had difficulty in doing his job properly. He had a "far away" look in his eyes and "would just have his eyes fixed on you and looking straight at you" but did not comprehend. During these last three months the appellant lost about forty pounds. Mr. Jones stated that he saw the appellant the day before May 28, 1975, and that in his opinion the appellant was "demented or insane".

On cross examination Mr. Jones stated that the appellant had his bible with him every day he was at work for the past two years; that he saw the appellant "sometimes maybe three, four or five times a day". The appellant had not just become "more peculiar" in his actions but had "completely changed".

Lee Alford was also an employee of U. S. Steel, had known the appellant for two years, and worked directly with him. He testified to substantially the same effect as Mr. Jones and stated that the appellant

"got so that you would have to tell him when to move. And when he got still it was like he was in a trance or something. You would have to go touch him and tell him to move, to call him out and tell him when to move or do the work, and like that."

The appellant would stare at "something in one direction" and would go a long time without blinking his eyes. Several days before the murder Mr. Alford did the appellant's work for him because the appellant "wasn't at himself at that particular time". The appellant's eyes were glazed and he appeared to have his mind on something else. The appellant "got to where he went to getting worse and worse". Mr. Alford saw the appellant the day before the murder and in his opinion the appellant was insane.

Cross examination of Mr. Alford revealed that although the appellant had always been a quiet type individual, during those last three months "He wasn't like he was, he was in a nervous condition and just in a just like he wasn't at hisself, like he was always in a daze."

Raymond L. Howard, Jr. was the third employee of U. S. Steel to testify for the defense. Mr. Howard described the changes in the appellant's personality occurring in a period of two to three months before May 28, 1975.

"Well, he just was in a daze, you know, like he didn't know what he was doing or where he was at most of the time."

The appellant became confused about his working schedule and had to be told over and over again and instructed on his work shift. He was "just blank"; he "wasn't here". Mr. Howard saw the appellant just about every morning and noticed that he was acting strange "as though he wasn't even in this world". Howard suggested to Mr. Jones that someone would do the appellant a favor if they would take him to the hospital or to a doctor.

During this time the appellant lost forty or fifty pounds. In Mr. Howard's opinion, the appellant was insane.

Each of these three witnesses testified that they saw the appellant the day before the murder was committed. Each testified that, in his opinion, the appellant was insane. Expert testimony confirmed the conclusions of these lay witnesses.

Dr. Gerald Lower testified that he was employed at the Forensic Branch at Bryce Hospital. The state stipulated that he was a qualified psychologist for the State of Alabama. Dr. Lower was the chairman of the Forensic Evaluation Board.

Dr. Lower testified that when the appellant was admitted to Bryce Hospital by order of the Jefferson County Circuit Court on June 17, 1975, he was in a catatonic state.

" . . . he would sit or stand mute; he wouldn't say anything; he wouldn't answer questions; and he would sit in strange postures and stare rigidly. And at first he, for several days, wouldn't eat.

"And in general, he was just completely out of contact."

A catatonic state is a condition in which the person is out of touch with reality, not responsive to conversations and cannot be communicated with. Dr. Lower testified that typically people who are in this state do things

"that aren't related to anything that is going on around them. And it's just as if they were shutting out the world and they are in their own world doing this posturing or this jesturing, whatever, not responding to the world around them."

A fixed stare is one of the features associated with a catatonic state. The appellant was interviewed by Dr. Lower, a staff psychiatrist and a medical doctor at Bryce Hospital.

In Dr. Lower's interview with the appellant's mother and father, he learned that the appellant was born with a "large lump" on the side of his head which eventually disappeared. According to his parents the appellant had always been "sickly" and had had headaches whenever he exerted himself.

"He had always been very quiet and kept to himself. He was frightened of crowds. And he felt that people were trying to hurt him.

" * * * That when he was an adolescent, when he was a young man, he never had a girlfriend, had never gone out with girls particularly until he finally married in November of 1974.

"That the day after the wedding he got very suspicious and afraid of his wife, and believed she was trying to poison him. That he...