Mastin v. State, 8 Div. 888

• Decision Date: 22 May 1984
• Docket Number: 8 Div. 888
• Citation: 455 So.2d 244
• Parties: Eddie Edward MASTIN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 244

455 So.2d 244

Eddie Edward MASTIN v. STATE of Alabama.

8 Div. 888.

Court of Criminal Appeals of Alabama.

May 22, 1984.

Rehearing Denied June 26, 1984.

Certiorari Denied Aug. 31, 1984

Alabama Supreme Court 83-1138.

William R. Hovater and Gary W. Alverson, Tuscumbia, for appellant.

Charles A. Graddick, Atty. Gen. and T.A. Harding Fendley, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Eddie Edward Mastin was indicted for the murder of his mother, Cleo Mastin, in violation of § 13A-6-2, Code of Alabama, 1975. The jury found the appellant guilty as charged and the trial judge set sentence at 99 years' imprisonment in the penitentiary.

The facts in this case are not in dispute and will therefore be briefly stated. On the evening of December 12, 1981, the appellant was at home with his mother, his brother, Steve, and his grandmother, Ida Carter. At some point, the appellant began rubbing his head and complained to his mother about a headache. His mother told him to take some medicine. The appellant then went and got a shotgun and shot and killed his mother.

When the appellant's brother, Steve, heard the shot he came into the den from the bedroom. The appellant was in the process of loading the gun. When Steve saw what had happened, he told the appellant he was going to kill him. The appellant then shot at his brother, who managed to avoid the shot and get away.

A short time later, the appellant was stopped for a routine traffic violation by Officer Ron Alexander of the Lauderdale Sheriff's Department. When Alexander asked for the appellant's driver's license, he noticed a shotgun on the back seat of the appellant's vehicle. Alexander and the appellant then got in the patrol car so that Alexander could write the appellant a ticket, while running a check for outstanding warrants. At this time, Alexander asked the appellant about the shotgun and he replied he had just shot someone. Alexander then received a dispatch that the appellant was wanted for questioning in connection with a shooting in Colbert County. The appellant was then turned over to the Colbert County authorities.

I

The appellant filed a plea of not guilty by reason of insanity in this case and the majority of the evidence presented at trial pertained to this issue.

The law of insanity is summarized in Cunningham v. State, 426 So.2d 484 (Ala.Crim.App.1982), cert. denied, (Ala., February 11, 1983). In that opinion, authored by Judge Bowen, we find that:

" 'A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.' Alabama Code 1975, Section 13A-3-1(a). The legal principles governing the burden and sufficiency of proof of insanity were collected in Christian v. State, 351 So.2d 623 (Ala.1977).

" 'Those principles may be summarized as follows:

" '1. By statute, there is a presumption of sanity extending to all persons over the age of 14.

" '2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.

" '3. The burden upon the defendant is to establish the issue of legal insanity by a preponderance of the evidence and to the reasonable satisfaction of the jury.

" '4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.

" '5. In making its determination, the jury may reject all expert testimony though it is without conflict.

" '6. However, opinion testimony, even of experts must be weighed by the jury and may not be arbitrarily ignored.

" 'Authority for each of these principles may be found in Christian, supra, at 351 So.2d 624.

" 'The one exception to these rules is found in those cases where the proof of insanity is overwhelming and uncontradicted.

" 'Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.' Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 (1934).

"Herbert v. State, 357 So.2d 683, 688-89 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978). Generally, see Anno. 17 A.L.R.3d 146 (1968)." Cunningham, supra, at 486.

Defense counsel argues that this case is one of the few in which the exception has been found to apply. He contends that the evidence of the appellant's insanity was so overwhelming that it overcame the presumption of sanity.

The defense called a number of witnesses who testified as to appellant's insanity. Numerous members of the community in which the appellant lived, including friends neighbors, his father and stepmother, testified that they had observed a change in the appellant over the several years prior to the murder at issue. They testified the appellant exhibited unusual behavior like sleeping in cars and in the rafters of buildings. He was withdrawn, seemed depressed and would be "off" in another world for long periods of time.

The one expert witness for the defense was Dr. Joseph Glaister, a psychiatrist and Medical Director of the Riverbend Mental Health Center. Dr. Glaister said he had been in contact with the appellant since 1976 and over the years the appellant had a history of mental illness. His records indicated that the appellant had complained of hallucinations and delusions and his condition was diagnosed as chronic, undifferentiated schizophrenia. Antipsychotic medication had been prescribed for the appellant and the evaluations of the appellant indicated his condition would likely deteriorate over the years. Dr. Glaister stated the appellant had been involuntarily committed to the Department of Mental Health by his mother. He testified that the observations of the appellant by the other defense witnesses are symptoms of schizophrenia.

Some eight months after the murder at issue, an evaluation was again performed on the appellant. He was found to be a paranoid schizophrenic. Dr. Glaister testified that the appellant's killing of his mother most likely was caused by his mental illness. He did not believe the appellant could fake his mental illness.

Even though evidence of an accused's insanity is overwhelming, it must also be undisputed for this court to find that the jury's verdict was contrary to the evidence presented at trial. Cunningham, supra. While the evidence of the appellant's insanity was strong, it was not undisputed.

The State presented three members of the appellant's family who testified as to his sanity. His two brothers and sister, who had close contact with this appellant, testified the appellant would act certain ways to get sympathy and attention from the others. His brother, Steve, who saw the appellant immediately before and after the shooting, testified that on one occasion the appellant threatened to kill his sister over some moonpies. The appellant said that if he killed her he could "go to the retreat and stay three weeks, six months and get out on the street ... because he had papers saying he was crazy." (R. 312). All three of these witnesses testified they believed the appellant was sane.

Since there was conflicting evidence as to the appellant's insanity, the question was properly submitted to the jury. Cunningham, supra, and authorities cited therein. After a thorough review of the evidence, we find there was evidence which would have supported the jury's finding that the appellant was, in fact, sane. Therefore, we hold the issue of the appellant's sanity was a question for the jury, which they properly resolved against the appellant.

II

During the closing argument of the prosecution, the following dialogue took place:

"MR. HOVATER: Your Honor, could we approach the bench?

"BY THE COURT: Yes.

"(At this time the attorneys approach bench outside the hearing of the jury at which time the following was said.)

"MR. HOVATER: I'd like to make an objection to the prosecutorial misconduct by Mr. Patton in referring to the Defendant not taking the stand to testify in his behalf.

"BY THE COURT: Which remark are you referring to?

"MR. HOVATER: Both remarks. All right, I'll say I didn't object to the first one, but my objection maybe wasn't timely, but I'm objecting to this last one. Let me make a showing also in his closing argument Mr. Patton has referred to how the Defendant has sat over there and has not said anything. Defense counsel feels that this is a comment on the Defendant not taking the stand. I move for a mistrial at this time.

"MR. PATTON: Let me put a statement in. As I recall my statement it was he sat over there with his head down. I haven't said anything about him not talking.

"BY THE COURT: O.K., I'm going to overrule--

"MR. HOVATER: Your Honor, I think it will show that he sat over there not talking also.

"BY THE COURT: I want to put in the record that I've had the Court of Criminal Appeals one time reverse me because Mr. Patton said the same thing about somebody else that sat over there that couldn't do anything that was asleep because he was on drugs and they reversed me because I didn't instruct the jury immediately that they are to disregard that remark and I want ya'll to tell me something if I remember correctly you asked several witnesses if he looked then like he did over there and if I remember correctly one time Mr. Hovater, you asked and has he said anything during this whole trial.

"MR. HOVATER: Who did I ask that to?

"BY THE COURT: I remember thinking--I remember thinking that he didn't have to say anything and I wondered why you were asking him. Dr. Glaister.

"MR. HOVATER: Well, I am noting my objection at this time. I've asked about appearances, about his physical appearance and I'm noting my objection.

"BY THE COURT: O.K., well, I'm going to say this I'm not going to grant the motion for mistrial, but I am going to say this I'm instructing you that you not to say anything about him not...