Lewis v. State, 8 Div. 558

• Decision Date: 18 May 1982
• Docket Number: 8 Div. 558
• Parties: Gary Wayne LEWIS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 470

414 So.2d 470

Gary Wayne LEWIS v. STATE.

8 Div. 558.

Court of Criminal Appeals of Alabama.

May 18, 1982.

James M. Corder of Steele, Alexander, Corder & Plunk, Athens, for appellant.

Charles A. Graddick, Atty. Gen., and Jeffery H. Long, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

A major issue on appeal is whether defendant was entitled to a directive or instruction by the trial court that the jury should find that defendant was not guilty by reason of insanity, as pleaded by him. We have considerable doubt whether defendant presented the question on the trial in such a way that it is reviewable on appeal. However, in the absence of any contention by appellee as to the reviewability of the question, we proceed to determine it.

There is no disagreement between the parties as to the applicable governing law on the subject at the time the alleged crime was committed, on December 5, 1979, prior to the effective date of the present Alabama Criminal Code. As of that time, as summarized in the Commentary to § 13A-3-1 of the Alabama Criminal Code, effective January 1, 1980, the law in Alabama as to the defense in a criminal case was:

"Under a plea of not guilty by reason of insanity, the burden is on the defendant to clearly prove to the reasonable satisfaction of the jury that he was so affected by disease of the brain when the offense was committed as to render him so insane that he did not know right from wrong with respect to the particular offense charged, or by reason of such mental disease he could not resist doing the wrong and the crime must have been the product solely of such diseased mind."

In support of the quoted statement, the Commentary cites Streeter v. State, 278 Ala. 272, 177 So.2d 826 (1965); Aaron v. State, 271 Ala. 70, 122 So.2d 360 (1960); Lee v. State, 265 Ala. 623, 93 So.2d 757 (1957); Lakey v. State, 258 Ala. 116, 61 So.2d 117 (1952), and cases cited therein; Parsons v. State, 81 Ala. 577, 2 So. 854 (1886). The facts in the case are undisputed. This is true as to all of the evidence as to the commission of the crime, furnished by witnesses for the State exclusively, and as to the evidence pertaining to defendant's plea of not guilty by reason of insanity, furnished by witnesses for defendant exclusively, including the officer who arrested the defendant.

We first consider defendant's evidence bearing on the question as to defendant's sanity. Such evidence has been correctly summarized in appellant's brief as follows:

"Gary Wayne Lewis (hereinafter referred to as Lewis) was one of seven children, and led a basically normal childhood until the death of his father. Subsequent to the death of his father, Lewis developed emotional problems which led to depression and some drug and alcohol use.

"On July 18, 1979, Lewis was admitted to the Residential Mental Health Treatment Program for Adolescents at Crocket Academy, in Nashville, Tennessee, and remained in this facility until discharged on November 21, 1979, because he turned 18 years of age. Mrs. Frances Priest, Lewis' counsellor at the Crocket Academy, testified that at the time of Lewis' release, it was her judgment that he was not always able to do what was right even though knowing the difference between right and wrong.

"As a child, Lewis had a turbulent childhood in that his father had an alcohol problem and Lewis was abused from a very early age. Lewis was administered alcohol by a family member at approximately 4 years of age. Lewis had received mental health treatment at the State Mental Health Facility in Decatur, Alabama.

"Between Lewis' return from the Crocket Academy on November 21, 1979, and the date of the robbery on December 5, 1979, Lewis exhibited irrational conduct evidencing his insanity. Lewis would sit to himself, talking irrationally, with jerking actions and threatened suicide. During this period of time, one night he ran screaming and crying into the street saying he wanted to die and jumped into the path of a moving automobile. The automobile narrowly stopped and avoided striking Lewis, and several people found it necessary to forcibly throw Lewis to the ground and restrain him. On another occasion during this same period of time, Lewis went berserk in his sister's home and did great damage to her room.

"....

"While in the custody of the Limestone County Sheriff's Department [after his arrest for another crime charged on the same day as this crime], Lewis attempted suicide by cutting his throat. From the Limestone County Hospital, Lewis was transferred on April 10, 1980, to Bryce Hospital and remained there until April 27, 1981, when he was returned to the Limestone County Jail for trial on a robbery charge [charge in the instant case].

"During the time Lewis was at Bryce Hospital, he was under the primary care and treatment of Dr. Thomas L. Smith, Jr., a Psychiatrist with a Law Degree from the University of Alabama and who performed Psychiatric Residency at the University of Alabama Hospital in Birmingham. During the time Lewis was at Bryce Hospital, he was seen by Dr. Smith a minimum of 48 to 50 times. Dr. Smith first felt Lewis' actions while at Bryce Hospital were self-serving, but testified that he later realized that Lewis was suffering from mental illness and could not do what would be considered right. Lewis' actions involved hallucinations, bizarre conduct, depression, barking like a dog, banging his head against a wall, and auditory hallucinations, in which Lewis felt that his deceased father was trying to control his mind and putting thoughts in his head. Lewis was determined to have a full scale I. Q. of 83 and was determined to be slightly retarded. From all of his observations and treatment, Dr. Smith testified at trial that it was his judgment that on December 5, 1979, Lewis had a mental illness and that he was unable to distinguish right from wrong and that because of his mental illness, he could not do what could be considered right. The doctor was not allowed to testify as to whether Gary Wayne Lewis was sane or insane on December 5, 1979. ¹ "

In further support of his plea of not guilty by reason of insanity, defendant called Officer Blakely as a witness. Appellant summarizes the testimony of Officer Blakely as follows:

"Shortly thereafter [after the robbery], a State Trooper called to the scene of the robbery apprehended Lewis. In and about arresting Lewis, the Trooper drew his pistol on Lewis who was unarmed. Lewis walked toward the officer telling him that he would have to kill him as he wasn't going to jail. The Trooper testified that this was extremely abnormal behavior for anyone under these circumstances."

The undisputed facts as to the circumstances of the alleged crime were that on December 5, 1979, defendant entered Cross Key Grocery Store with a pistol in his hand, a mask on his face and sunglasses over his eyes. He was dressed in blue jeans, and he robbed the manager of the store, Mr. Billy Cook, and Mr. Franklin Kelley, who was calling on the store as a salesman. According to Mr. Kelley's testimony, "Well, the first thing he told Billy Cook, he was facing Billy as he walked in and I had my back to him. He had this gun in his hand and he said he wanted Mr. Cook's money and so he said okay, and he had to come by me. So, Mr. Cook just motioned me to come around the counter where he was and I turned and faced him then and told me as he walked by to go to the register, that it was his store but that he wanted my money too." According to further testimony of Mr. Kelley, he was robbed by defendant of "around a $147.00 in cash and two checks," and defendant placed the money and the checks in a "money bag someone would take to the bank." The witness further said that "I might have seen his hand shaking maybe just a little bit and when he said he didn't want to hurt anyone and all he wanted was Cook's money and then later, you know, he told me he wanted my money too."

Mr. Cook testified, inter alia:

"Yes, a little after 12:00 a guy came running in the store with a ski mask on, sun glasses, an old hat pulled down over his head. He threw a pistol on me and said he wanted my money. Said he didn't want to hurt anybody but wanted our money. There was a salesman in the store at the time standing in front of the cash out counter and after he told me that he threw the pistol on the salesman and told him he wanted his billfold and then made us move back away from the check out counter and he came around behind the counter after getting the salesman billfold. And he couldn't open the cash register and I opened it for him. I told him not to tear it up and I'd open it for him. And he told me he wanted my billfold and I told him I didn't have one. Then he told me to move back, me and the salesman. While he was getting the money out of the cash register I eased back toward the back of the store and as he was getting the money out of the cash register he dropped some money on the floor. And when he dropped it on the floor and reached down to pick it up I moved back to the back of the store trying to get my pistol. When he came in around the counter he dropped some more money on the floor. He reached down to pick that up and it gave me a chance to get to my pistol. And when I got to my pistol, just as he raised up off the floor, I shot at him and missed him, of course.

"Q. All right. Did the person run out the door then?

"A. He ran out the door and I ran behind him and shot at him four times.

"Q. Okay. Did you notice which direction or where the person ran?

"A. Yes, he ran east of Cross Key's Road behind the store.

"Q. Okay. Did you call the police or did someone else?

"A. I had the milkman. He was outside in the truck, call the police."

Mr. Cook further testified that after defendant cleared the store and the immediate vicinity, Mr. Cook and someone else chased him, partly by using a truck and running defendant into a pasture, into which they followed him...