Salmon v. State, 6 Div. 445

• Decision Date: 09 October 1984
• Docket Number: 6 Div. 445
• Citation: 460 So.2d 334
• Parties: Herbert Spencer SALMON III v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 334

460 So.2d 334

Herbert Spencer SALMON III v. STATE of Alabama.

6 Div. 445.

Court of Criminal Appeals of Alabama.

Oct. 9, 1984.

Rehearing Denied Nov. 13, 1984.

L. Drew Redden and William N. Clark, of Redden, Mills & Clark, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Herbert Spencer Salmon, III was indicted for the intentional murder of one Herbert Spencer Salmon, IV, his 30 day old child, by "beating or shaking or striking or squeezing him with his hands", in violation of § 13A-6-2, Code of Alabama 1975. The appellant entered a plea of not guilty and not guilty by reason of mental defect or disease. The jury found the appellant "guilty of murder as charged" and, following a sentencing hearing, the trial judge sentenced him to life imprisonment.

Ernestine Salmon testified that she was married to the appellant. She said that on April 9, 1983, they lived at Cedarbrook South Apartments. She said they had two sons who lived with them in the apartment. She stated that their youngest son, Herbert Spencer Salmon, IV, was 30 days old on April 9, 1983.

Mrs. Salmon testified that on April 9, 1983, she left the apartment at approximately 3:45 p.m. to run some errands. When she returned at 5:15 p.m. her husband was watching television. She went to the bedroom and glanced at the baby, who appeared to be asleep. The child's mouth was open and he looked a little paler than normal, but as she was in a hurry to get supper started, she did not check him very closely. She prepared the baby's bottle and went to feed him. When she picked him up, his body was cold and he would not move. She noticed two small marks on his cheeks. She screamed for the appellant, telling him something was wrong with the baby. She carried the baby to the dining room and placed him on the table where she and the appellant began mouth-to-mouth resuscitation. They could not revive the child so the appellant called the paramedics. Mrs. Salmon stated that during this time the appellant's face was drained of color and he looked real funny. The paramedics arrived and began mouth-to-mouth resuscitation, but they could not revive the child. They called Brookwood Hospital for an ambulance which arrived shortly thereafter, along with Hoover police officers. The child was transported to Brookwood Hospital where he was pronounced dead. The Hoover police transported Mrs. Salmon and the appellant back to their apartment.

Mrs. Salmon testified that she stayed with her parents that night but her husband remained in the apartment. She received a telephone call the next morning from Sergeant Murdock. She stated that together with her sister and her parents she went to her apartment as a result of this call. When they entered the apartment they saw a note addressed to her, taped to the back of a dining room chair. She said that her father handed the note to her. She further stated that the note was not signed, but was in the appellant's handwriting. She said that Sergeant Linda Kirchler, of the Hoover Police Department, came to the apartment and she gave the note to Sergeant Kirchler. In part, the note stated, "I promise you, I had no intention of taking Herbert's life, but unfortunately, I was too rough on him and Herbert didn't make it.... I'm turning myself in to the authorities." (R. 59).

Mrs. Salmon testified that for several months prior to the baby's death, the appellant would come home from work early. He was Vice-President of his family company. She said he would come home at one or two o'clock in the afternoon, then just sit and watch television and play complicated games by himself. She stated that she could not communicate with the appellant at all. He could not stand stress or pressure and began withdrawing. She stated that for several years she had felt that he needed "help", but that he was not insane. She said that he had displayed a temper in the past, but that he had never hurt her or the children.

James Phillips testified that he was employed as a paramedic for the City of Hoover Fire Department. On April 9, 1983, Phillips and his partner were called to the Salmon's residence at Cedarbrook Apartments. When they entered the apartment Mrs. Salmon was working on, and trying to revive, an infant which was lying on the dining room table. Phillips checked the baby, but found no respiration or pulse. He said that he began cardiopulmonary resuscitation. He could not revive the child, so an ambulance was called and the baby was transported to Brookwood Hospital where he was turned over to a resuscitation team.

D.C. Scivley testified that he was employed as a police officer by the City of Hoover. He said that on April 9, 1983, he responded to a call at the Salmon residence. He stated that when the child was taken to the hospital, the key to the apartment was given to Sergeant Reeves. After the baby was pronounced dead, he transported the Salmons by City Hall where they picked up the keys to their apartment. He then transported them to their apartment. He stated that he never observed the appellant engage in any irrational behavior.

Harold Murdock testified that he was employed as a Detective-Sergeant by the City of Hoover Police Department. He was called to the police station on the morning of April 10, 1983, and told by Sergeant Franklin that the appellant wanted to talk to him about the death of his child. The appellant had come to the police station of his own free will. He indicated that the appellant was calm and exhibited no irrational behavior.

The appellant was read his Miranda warnings and signed a waiver of rights form. At this time the appellant gave a statement to him and Officer Kirchler. This statement was recorded. The appellant also gave a statement in his own handwriting. The appellant was then arrested and charged with murder.

Robert E. Jones, Jr., testified that he was a physician. On April 9, 1983, he performed an autopsy on Herbert Spencer Salmon, IV. From his external examination of the child, two small cuts or scrapes were revealed about one-half inch on each side. The left ear was bruised, as was the area on the back of the scalp. He stated that there were small bruises on each arm.

Dr. Jones testified that the internal examination revealed hemorrhage deep into the skin of the scalp. The skull had small fractures on each side, approximately an inch or one and one-half inches long. These fractures were consistent with someone grabbing the head with the hands and squeezing. There was trauma to both sides of the head. He stated it was his opinion that death resulted from trauma or injury to the head.

Allen E. Shealy, a clinical psychologist, testified that he examined the appellant on two occasions. These examinations lasted approximately two hours each and consisted of psychological testing and interviewing the appellant. He stated that he first examined the appellant on May 5, 1983, then again on May 10, 1983. He stated that the appellant told him he came to see him because appellant had been charged with the accidental death of his one month old son.

Dr. Shealy stated that he asked the appellant to describe the death of his son. The appellant told him the following:

"My one month child let out a cry which provoked the irrational behavior. I do recognize the child as my son, so there was a partial level of consciousness at that time. By the time I was shaking him, I didn't know what his name was and I didn't even know that he was a baby. The baby was held in a parallel plane over the bed and not taken away from the bed. At that time, I thought of it as a form, not a child. The second act was the squeezing of the head. The autopsy said a cerebral hemorrhage. The baby's eyes were open and it was breathing and looked quite exhausted. Its pulse was slow. It was looking outward, not necessarily at me." (R. 206-207).

He stated that it was his opinion that the appellant was of above average intelligence based on the appellant's vocabulary and general knowledge. He further stated that the appellant showed no emotion during the time he interviewed him.

Dr. Shealy testified that he administered several psychological tests to the appellant and that these tests showed this appellant was a paranoid schizophrenic. He stated that it was his opinion that on April 9, 1983, at the time the appellant committed this act, the appellant was suffering from the disease of paranoid schizophrenia. In his opinion, the appellant lacked the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

Dr. Shealy further testified that, when the appellant came to his office for the first interview, he could understand him well. He stated that appellant had no speech defects and was organized in his speech. He also said that the appellant conveyed to the doctor his belief that he was suffering from a mental disorder.

Patrick Linton testified that he was a psychiatrist employed by the University of Alabama in Birmingham. On May 24, 1983, the appellant was transferred from Brookwood Hospital to the University Medical Center. He stated that he saw the appellant every day, with a few exceptions, during appellant's two and one-half month stay in this hospital. His diagnosis of the appellant was schizophrenic disorder, paranoid type. He stated that the appellant was withdrawn, quiet, showed little emotion, and was very circumstantial and involved with explanations. He said that the appellant recalled "either having squeezed the child's head or done some kind of damage."

Dr. Linton testified in his opinion the appellant's act was a result of his illness. His opinion was that the appellant lacked the substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. However, Dr. Linton stated that the writer of the note indicated appreciation...