Ivery v. State

• Decision Date: 19 April 1996
• Docket Number: CR-93-0766
• Citation: 686 So.2d 495
• Parties: Samuel IVERY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 495

686 So.2d 495

Samuel IVERY v. STATE.

CR-93-0766.

Court of Criminal Appeals of Alabama.

April 19, 1996.

Glenn Davidson, Richard Williams, Mobile, for Appellant.

Jeff Sessions, Atty. Gen., and Jack Willis and Frances Smith, Asst. Attys. Gen., for Appellee.

PATTERSON, Judge.

Samuel Ivery was convicted after a jury trial of the capital offense of murder of Deborah Lewis committed during a robbery in the first degree or an attempt thereof, see § 13A-5-40(a)(2), Code of Alabama 1975. At the sentencing phase of the trial, the jury voted unanimously to recommend that Ivery be sentenced to death. At the sentencing hearing held pursuant to §§ 13A-5-47 through -52, the trial court sentenced Ivery to death by electrocution.

The facts of the crime in this case are not in dispute. The sole issue presented at trial was whether Ivery was legally insane at the time of the offense. Ivery essentially conceded the prosecution's prima facie case, raising no evidentiary objections during the state's case-in-chief, and subjected the state's witnesses to little, if any, cross-examination. The trial court's sentencing order presents a complete and correct recount of the gruesome facts of the case presented at trial.

"[E]arly on the afternoon of August 15, 1992, the defendant, armed with a hatchet, a knife, and a hammer--all of which were concealed in a travel bag--went to the Shell [gasoline] station and convenience store in downtown Mobile. After waiting in excess of thirty minutes for the store to empty, the defendant locked the doors from the inside, robbed the victim, Deborah Lewis, of $302.00, forced Ms. Lewis to the floor, bound her hands, eyes and mouth with duct tape, and then decapitated her with a hatchet.

"Evidence of the defendant's guilt was overwhelming. The events which took place in the store were recorded on a video tape, which was played for the jury. A hardware store clerk identified the defendant as the person to whom he had sold the hatchet in evidence on the morning of the murder. Two prosecution witnesses placed the defendant in the store just prior to the murder; a third saw him running a few blocks from the scene with what appeared to be blood on his shirt and carrying a travel bag. One of the witnesses, Catonya Frost, [who] saw the defendant in the store also quoted him as telling Ms. Lewis: 'Wait until the customers leave; I'm gonna get you.'

"Later in the afternoon, after the robbery and murder, the defendant next appeared at a shopping center north of the downtown area. A security guard at the Winn-Dixie grocery [store] was alerted that a man was washing his shirt in the bathroom of the store. The guard noticed what appeared to be blood on the defendant's shirt, and, after inquiring as to its origin, was told by the defendant that he had cut his foot. The guard also noticed the travel bag containing a hatchet and a knife and was told by the defendant that he carried these weapons for protection.

"From the Winn-Dixie the defendant went to Big B drug store in the same complex. There he exchanged $200.00 in small denomination bills for the same amount in large denominations.

"The defendant was arrested the day after the murder--Sunday, August 16, 1992. Sgt. Joe Connick observed the defendant walking on Government Street in downtown Mobile. When the officer started to question the defendant, he fled. After leading the police on a foot chase across the downtown area, the defendant was apprehended by Officer Karl Reed.

"Twelve days after the crime--August 27, 1992--police [who were] conducting an exhaustive search of abandoned houses in and around the downtown area, discovered the bag, hatchet, and a knife with a scabbard in an abandoned house at 1161 Martin Luther King Avenue. The items were seized, and fingerprint comparison of latent prints from the scabbard matched the known prints of the defendant.

"To the charge in the indictment the defendant entered the special plea of not guilty by reason of mental disease or defect. In support of said plea, the defendant offered the testimony of Dr. Claude Brown, a psychiatrist, and Dr. Daniel Koch, a psychologist.

"Dr. Brown diagnosed the defendant as a paranoid schizophrenic. Though Dr. Brown said the defendant could not appreciate the nature, quality, or wrongfulness of his conduct at the time of the offense, he also testified that the defendant was acting of his own free will at the time he robbed and murdered Deborah Lewis. On cross-examination, Dr. Brown testified [that] the defendant had the capacity to plan and scheme, as was evidenced by his planning and execution of the crime for which he now stands convicted.

"Dr. Koch also diagnosed the defendant as a paranoid schizophrenic and gave his opinion that the defendant could not appreciate the nature, quality or wrongfulness of his conduct at the time of the commission of the crime. He blamed the defendant's alleged delusional disorder as the reason for beheading the victim, but even Dr. Koch admitted on cross-examination that 'in a[n] abstract sense, he does know it is wrong to kill people, but he thinks he is an exception.'

"In rebuttal, the State presented the testimony of Dr. Richard Rogers, a forensic psychologist, Dr. George Barnard, a forensic psychiatrist, and Dr. Wilburn Rivenbark, Director of Clinical Services at the Taylor Hardin Secure Medical Facility.

".... It was Dr. Rogers's opinion that the defendant could indeed appreciate the nature, quality, or wrongfulness of his conduct in that the clinical data and the facts of the offense, as interpreted by Dr. Rogers, made it 'quite clear' that the defendant understood his behavior was against the law. Though the defendant suffered from a delusional disorder, his disorder did not interfere with his ability to know that murder was against the law. Dr. Rogers testified this delusional disorder did not automatically impair the defendant's ability to appreciate the nature, quality, or wrongfulness of his conduct.

"Dr. George Barnard, who has conducted in excess of four thousand forensic evaluations, concluded that the defendant had a personality disorder. In Dr. Barnard's opinion, the defendant did not manifest signs or symptoms of a genuine mental illness; rather, the defendant was malingering.[ ¹] [ ¹] Consequently, Dr. Barnard also concluded the defendant indeed could appreciate the nature, quality, or wrongfulness of his conduct.

"Finally, Dr. Rivenbark testified that the only symptoms of mental disease or defect he noted in evaluati[ng] the defendant were those the defendant claimed to have. Dr. Rivenbark also found significant evidence of malingering, and the defendant's history of behavior and actions at the time of the offense, coupled with later observation and evaluation, suggested the absence of a mental illness."

To this statement of facts, we add that Ivery's defense indicated that, as a result of his alleged paranoid schizophrenia, Ivery believed himself to be the "ninja of God," and to have been instructed by God to kill people at will and to take their money as the spoils of victory. With this single addition, we adopt the trial court's statement of facts as quoted for the purposes of this opinion.

At the outset, we note that many of the issues raised on appeal were not raised at the trial level. Therefore, we review these issues under the doctrine of plain error.

" 'In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant.'

"Rule 45A, Ala.R.App.P.

" 'The Alabama Supreme Court has adopted federal case law defining plain error, holding that " '[p]lain error' only arises if the error is so obvious that the failure to notice it would seriously affect the fairness or integrity of the judicial proceedings," Ex parte Womack, 435 So.2d 766, 769 (Ala.), cert. denied, 464 U.S. 986, 104 S.Ct. 436, 78 L.Ed.2d 367 (1983) (quoting United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir.1981)).'

"Haney v. State, 603 So.2d 368 (Ala.Cr.App.1991), aff'd, 603 So.2d 412 (Ala.1992), cert. denied, U.S. , 113 S.Ct. 1297, 122 L.Ed.2d 687 (1993). '[T]he plain-error exception to the contemporaneous-objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." ' United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 1046, 84 L.Ed.2d 1, 14 (1985), quoting United States v. Frady, 456 U.S. 152, 163, 102 S.Ct. 1584, 1592, 71 L.Ed.2d 816 (1982). To find plain error, an appellate court must find that 'the claimed error not only seriously affected "substantial rights," but that it had an unfair prejudicial impact on the jury's deliberations.' Young, 470 U.S. at 18, 105 S.Ct. at 1047, n. 14, 84 L.Ed.2d at 14."

George v. State, [Ms. CR-94-0387, April 19, 1996] --- So.2d ----, ---- (Ala.Cr.App.1996).

I.

Ivery contends that the trial court erred, during the guilt-phase jury instructions, by failing to define "wrongfulness," for purposes of § 13A-3-1, Code of Alabama 1975, as moral wrongfulness. At trial, Ivery did not object to the trial court's failure to define "wrongfulness" for the jury; therefore, our review is limited by the plain error standard.

Alabama's insanity defense statute, § 13A-3-1(a), reads:

"It is an affirmative defense to a prosecution for any crime that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense."

This statute does not define "wrongfulness"; therefore, to determine the meaning of that word in the context of the...