Shorts v. State, 7 Div. 868

• Decision Date: 29 December 1981
• Docket Number: 7 Div. 868
• Parties: Columbus SHORTS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 830

412 So.2d 830

Columbus SHORTS v. STATE.

7 Div. 868.

Court of Criminal Appeals of Alabama.

Dec. 29, 1981.

Rehearing Denied Jan. 26, 1982.

Certiorari Denied, April 23, 1982

Alabama Supreme Court 81-386.

Myron K. Allenstein, Gadsden, for appellant.

Charles A. Graddick, Atty. Gen., and Jane Lecroy Brannan, Asst. Atty. Gen., for appellee.

HARRIS, Presiding Judge.

The appellant was indicted and convicted for the murder of his wife, Florence Thomas Shorts, by stabbing her with a knife in violation of Alabama Code § 13A-6-2 (Supp.1977). The trial court fixed his punishment at life in the state penitentiary. At arraignment, in the presence of counsel, appellant pleaded not guilty and not guilty by reason of insanity. Appellant is represented on this appeal by court-appointed counsel, who represented him at trial, and has been furnished with a free transcript.

The evidence was uncontroverted that appellant murdered his wife by stabbing her some forty times with a knife. From the opening statement at appellant's trial, it was freely admitted that appellant, acting alone, made all the stab wounds. The only defense offered was insanity.

Appellant, without reservations, admitted in his testimony that he was mad at his wife at the time he killed her. Appellant testified that he and the deceased "wasn't getting along too good," that she had been "going out sleeping with other men" and was pregnant with a child that was not his. One paramour the deceased had mentioned in particular was a "guy named Charles," whom she had been seeing for "about a week" prior to the night she was killed. Appellant stated that he "got tired" of the deceased referring to Charles as "her sweetheart." It was appellant's belief that the deceased and Charles "both put a hoodoo pact on me." Appellant further testified that the deceased had told him that "Charles and his mama put the hoodoo on me."

The night of the killing appellant testified that he had been trying to go to sleep but the deceased wouldn't let him. The deceased was "just laying there wide awake calling Charles's name and doing things." "I told her she gonna keep on, I do something to her." The deceased then told appellant she wanted to engage in marital relations, but appellant found himself impotent. The deceased began laughing "about putting the hoodoo on me" and "that's when I killed her." Appellant testified that if the deceased "hadn't messed around" with Charles the "hoodoo" would never have "got on me." He further stated that if one had enough "hoodoo" it would "kill you, that's what it will do for you." Appellant expressed no regret for having killed the deceased.

During the course of the trial, there was a great deal of testimony concerning appellant's mental condition. Evidence was presented by Dr. Thomas L. Smith, Jr., a psychiatrist and Director of the Alabama Secure Medical Facility at Bryce Hospital, on behalf of the State and by Dr. J. Stephen Zeigler, a clinical psychologist, on behalf of the defense as to appellant's sanity at the time of the commission of the crime.

Dr. Smith gave his opinion that, even though appellant "may have had a mental disease or defect at the time of the act charged, such disease or defect did not in his case cause the defendant to lack substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law." Dr. Smith was able to observe appellant at Bryce Hospital after the February, 1980, killing from 8-1-80 to 10-3-80 and from 12-23-80 to 4-15-81. Dr. Smith testified that appellant's I.Q. was tested while he was at Bryce and that appellant scored a full scale of 55, placing him in the mild range of mental retardation.

Dr. Zeigler's testimony concerning appellant's mental condition, on the other hand, was based on his examination of appellant for "several hours" on November 9, 1979, three months prior to the commission of the offense. At that time Dr. Zeigler had been requested by the State Department of Education, the Division of Disability Determination, to determine whether or not appellant could handle his own financial affairs. He had no further contact with appellant. Dr. Zeigler testified that his conclusion about appellant's mental condition was contrary to those of Bryce Hospital.

Without further detailing the testimonies of Dr. Smith and Dr. Zeigler, it is sufficient to say there was a conflict in the evidence. It is clear from reading the record, however, that Dr. Zeigler's testimony in no manner constituted a "preponderance of the evidence" that appellant was suffering from a "mental disease or defect" at the time of the commission of the crime such as would negate criminal responsibility under Alabama Code § 13A-3-1 (Supp.1977). In order to overcome the presumption of sanity, the appellant had the burden to prove by a preponderance of the evidence that he was, in fact, not responsible for his criminal conduct because at the time of such conduct he lacked the "substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law" as a result of a mental disease or defect. Alabama Code § 13A-3-1 (Supp.1977). See Christian v. State, 351 So.2d 623 (Ala.1977); Wherry v. State, 402 So.2d 1130 (Ala.Cr.App.1981); Berard v. State, 402 So.2d 1044 (Ala.Cr.App.1980). The determination of that issue against appellant was clearly within the province of the jury and was fully supported by the State's evidence. We note that Alabama Code § 15-16-2 (1975) was not repealed by § 9901 of Acts 1977, No. 607, and should be read in conjunction with Alabama Code § 13A-3-3 (Supp.1977).

Appellant contends it was error for the trial court to allow his tape recorded confession to be played before the jury. Appellant maintains that he did not have the mental capability to knowingly and intelligently waive his constitutional rights at the time he was given the Miranda warnings at the Gadsden Police Department. We disagree.

The record is clear that, before appellant was questioned regarding his confession, law enforcement officers read him the Miranda warnings and he voluntarily signed a waiver. The question in issue is whether or not, under the totality of the circumstances, appellant had the mental capability of understanding the Miranda warnings and of knowingly and intelligently waiving his constitutional rights. We answer affirmatively.

Lieutenant H. J. Copeland of the Gadsden Police Department testified, outside the presence of the jury, that in reading to appellant the Miranda warnings, "I explained to him that those were his rights.... I asked him did he understand them and he said, 'Yes.' "

"Q. What was said next?

"A. All right. I asked him did he want to sign it. I explained to him what that was, it was a waiver agreeing to talk to me.

"Q. Tell us exactly what you explained to him.

"A. I told him-Explained to him what that was, told him it was a waiver. If he signed it that meant he agreed to talk to me without an attorney and did he want to sign, 'Yeah.' He said-

"Q. What did he say?

"A. He said, 'I might-' something like, 'I might as well talk to you, I killed her.' Something like that."

Lieutenant Copeland stated that, at the time he talked with appellant, he had no knowledge that appellant had any mental problems. Lieutenant Copeland testified that appellant "may have been slightly nervous. He wasn't overly nervous." Lieutenant Copeland later testified before the jury that at no time did appellant seem incoherent. "He seemed to know what was going on. Aware of everything."

Appellant next testified outside the jury's presence that it was his voice that appeared on the tape recording and that he had, in fact, signed a waiver. Appellant recalled that he had been told he had the right to remain silent and the right to have a lawyer. Appellant remembered being told specifically that he would be provided with a lawyer before being questioned, but that he didn't want one because he was guilty and it "wouldn't do me no good down here." Appellant stated that he understood he did not have to make a statement.

Appellant stated that he did not know what the words "waiver," "undersigned," or "constitution" meant. When asked what "any statement which I might make may be used against me in Court" meant, appellant replied, "Court of law, I guess."

On cross-examination, appellant again admitted being told that if he requested an attorney no questions would be asked until he had been provided one, but that he "just wanted to tell the truth about it."

Dr. Thomas L. Smith, Jr., testified on voir dire that in his opinion appellant could substantially understand the Miranda warnings which were given to him and the waiver of counsel which he signed. Dr. Smith then stated the following concerning appellant's mental capability to understand his constitutional rights:

"A. Despite the problems that I have outlined before that he had, there is one thing that is striking about him, is that his-He is oriented towards his rights and on one occasion while he constantly demanded to be returned to Court to have his day in Court and work with his lawyer. On one occasion had told us that he was going to call his attorney about having him sent back. He was going to demand or even bring it to Court, the fact that we were holding him there and he wanted to come back and he was entitled to his day in Court, which indicated to me that he had some working knowledge with an attorney who was on his side and I was very much impressed by his ability that he knew he had an attorney, that the attorney or lawyer was working for him, that he could call upon this lawyer to exert-Assert his legal rights and this is really where I am coming from in giving an opinion on this because of what he actually said to me while he was there, that he knew that he had legal rights and he had a lawyer working for him and he certainly understood, you know, what the charges...