Seibold v. State

• Decision Date: 18 December 1979
• Docket Number: 5 Div. 473
• Citation: 382 So.2d 1141
• Parties: Edward Albert SEIBOLD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1141

382 So.2d 1141

Edward Albert SEIBOLD v. STATE.

5 Div. 473.

Court of Criminal Appeals of Alabama.

Dec. 18, 1979.

Rehearing Denied Feb. 5, 1980.

Richard D. Lane, Auburn, for appellant.

Charles A. Graddick, Atty. Gen., C. Lawson Little, Asst. Atty. Gen., for appellee.

LEIGH M. CLARK, Retired Circuit Judge.

By this appeal appellant seeks to review and reverse two judgments of the trial court, one rendered and entered on May 14, 1979, and the other on June 4, 1979. By the judgment of May 14, 1979, the court denied appellant's pro se petition for writ of error coram nobis filed on April 11, 1979; by the judgment of June 4, 1979, the court denied appellant's second pro se petition for writ of error coram nobis filed May 23, 1979, an accompanying pro se petition for rehearing of the first petition for writ of error coram nobis and appellant's motion for the trial judge to recuse himself. For this appeal an attorney was appointed to represent appellant, and he has filed a comprehensive brief.

By the two petitions for writ of error coram nobis, petitioner sought to vitiate his conviction and sentence to life imprisonment for murder in the first degree in each of three cases, and his conviction of assault with intent to murder and a sentence to twenty years imprisonment, all of which occurred after entry of a plea of guilty by defendant and the hearing thereon, at which he was represented by an employed attorney and an attorney appointed by the court. From the judgments of conviction and sentence, defendant appealed and was represented on appeal by an attorney appointed by the court. The judgment of conviction and sentence in each case was affirmed in Seibold v. State, 50 Ala.App. 613, 281 So.2d 667 (1973), cert. denied 291 Ala. 797, 281 So.2d 668 (1973).

The judgments from which the appeal in these proceedings was taken were rendered by Honorable L. J. Tyner, former Presiding Judge of the Seventh Judicial Circuit, now a retired Circuit Judge of said circuit, to whom the case was assigned by the present Presiding Circuit Judge, by virtue of authority vested in him by order of the Chief Justice of the Supreme Court of Alabama on January 23, 1978. Judge Tyner, while a regular circuit judge, presided and rendered the judgments of conviction and sentence that were affirmed in Seibold v. State, supra. He also presided and rendered judgments of conviction and sentence in two cases in which appellant herein had been found guilty by a jury of murder in the first degree, wherein his punishment in each case was fixed at death. In one of the cases, Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970), the judgment was affirmed, but in a habeas corpus proceeding the judgment was vacated in Seibold v. Daniels, 337 F.Supp. 210 (M.D.Ala.E.D.1972). Judge Tyner presided also on the trial of this appellant which resulted in a jury verdict finding him guilty of murder in the first degree of another victim and fixing his punishment at death, and a judgment accordingly, which judgment was reversed and the cause remanded in Seibold v. State, 287 Ala. 693, 255 So.2d 53 (1971).

An attorney was appointed by the trial court to represent appellant on this appeal. From the time of the appeal and the appointment of the attorney until the first part of September 1979, there was a proliferation in this Court of pro se motions and other pro se documents by appellant, including correspondence between him and his appointed attorney, who filed a brief on behalf of appellant on August 29, 1979. In a part of the documents filed by appellant pro se, appellant expressed dissatisfaction with the method by which his appointed counsel was handling the matter on appeal. His complaints, requests and motions for relief are apparently supplanted by his pro se motion of September 4, 1979, entitled "MOTION TO BE ALLOWED TO DISCHARGE ATTORNEY-OF-RECORD, OR, IN THE ALTERNATIVE, MOTION THAT BRIEF AND ARGUMENT OF ATTORNEY-OF-RECORD BE STRICKEN FROM THE RECORD." In the meantime, on August 21, 1979, he had filed a pro se brief.

In compliance with the objective of appellant's said motion of September 4, 1979, although the writer has read the brief of appellant's counsel, said brief will, insofar as such action is possible, be disregarded.

We first consider that part of the judgment of June 4, 1979, in which the court denied appellant's motion that the trial judge recuse himself. Appellant's pro se brief does not bring forward the contentions set forth in his motion for a recusal. There is no relation between the point and any of the seven propositions of law he relies upon in his brief for a reversal. The motion to recuse consists of a congeries of vague imputations of partiality, in which no greater specificity is found than the allegation that petitioner "can produce witnesses who will swear under oath that they believe the trial judge . . . was biased against the petitioner and lacking in impartiality." No reference is made in the motion to recuse to any conduct of the judge other than that which transpired in open court relative to one or more of the cases in which he presided. The motion to recuse does not show any merit on its face, and it was properly denied. Disqualifying prejudice or bias of a judge toward a party litigant must be of a personal nature. Johnson v. State, Ala.Cr.App., 335 So.2d 663 (1976); Slinker v. State, Ala.Cr.App., 344 So.2d 1264 (1977); Pannell v. State, Ala.Cr.App., 356 So.2d 219, 221 (1978); Canon 3, A(5), Alabama Canons of Judicial Ethics.

Propositions of Law IV, V, VI and VII of appellant's pro se brief relate to his claimed insanity, or mental incompetence to stand trial, and his alleged resultant inability to enter a guilty plea and be sentenced in each of the four cases. In passing upon such question, the trial court had before it, and apparently fully considered, the entire record and the court reporter's transcript of the entire proceedings that resulted in the judgments of conviction and sentence from which the consolidated appeal was taken in the last reported Seibold case, 50 Ala.App. 613, 281 So.2d 667 (1973), cert. denied, 291 Ala. 797, 281 So.2d 668 (1973). Post-conviction judicial relief is not to be extended to such an extreme as to set aside that which has been fully considered and determined in an adversary proceeding at least twice by the trial court, on original submission and on rehearing by the Court of Criminal Appeals, and on petition for certiorari, by the Supreme Court of Alabama. And we may add that it has been correctly determined, in our view, after consideration of the record and the transcript of the proceedings in the four cases in which defendant was convicted and sentenced on his plea of guilty in each case.

Propositions of Law I, II, & III in appellant's pro se brief raise a point not raised in the basic proceedings in which appellant was found guilty and sentenced, and was not raised in appellant's first petition for writ of error coram nobis in the instant proceeding. By such propositions of law and arguments made in the pro se brief in support of such propositions, appellant contends that the trial court was in error in the three cases of murder in the first degree, in determining, without the intervention of a jury, that defendant was guilty of murder in the first degree and in fixing his punishment at life imprisonment. He supports his contention by references to the provisions of the Code applicable at the time of said convictions and sentences, Code of Alabama, Recomp.1958, Tit. 14, §§ 317, 318, and Tit. 15, § 277, as follows:

"When the jury find the defendant guilty under an indictment for murder, they must ascertain by their verdict whether it is murder in the first or second degree; but if the defendant on arraignment confesses his guilt, the court must proceed to determine the degree of the crime, by the verdict of a jury, upon examination of the testimony and pass sentence accordingly." Tit. 14, § 317

"Any person who is guilty of murder in the first degree, shall, on conviction, suffer death, or imprisonment in the penitentiary for life, at the discretion of the jury; and any person who is guilty of murder in the second degree shall, on conviction, be imprisoned in the penitentiary for...