Smith v. State, 6 Div. 593

• Citation: 411 So.2d 839
• Decision Date: 29 December 1981
• Docket Number: 6 Div. 593
• Parties: George Gerald SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 839

411 So.2d 839

George Gerald SMITH v. STATE.

6 Div. 593.

Court of Criminal Appeals of Alabama.

Dec. 29, 1981.

Rehearing Denied Jan. 26, 1982.

Certiorari Denied, April 2, 1982 Alabama Supreme Court 81-408.

H. Jadd Fawwal, Bessemer, for appellant.

Charles A. Graddick, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.

BOOKOUT, Judge.

Murder; sentence: fifteen years' imprisonment.

The fact that appellant shot and killed the victim is not an issue on appeal; hence it is unnecessary to detail the evidence here. Rather, the issue on appeal is whether the evidence at trial conclusively proved that the appellant, as a result of a mental disease or defect, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Section 13A-3-1, Code of Ala. 1975. Therefore, we detail that evidence which tends to illustrate appellant's mental state at the time the murder was committed.

Mrs. George W. Smith, Jr., appellant's mother and the victim's wife, testified that something awakened her during the night of May 9, 1980, around 11:50 p.m. She got out of bed and saw appellant standing in the hall outside her bedroom holding a gun. She asked appellant what he was doing. She was then struck in the stomach, apparently with a shot from the gun appellant held in his hand. She immediately closed the bedroom door and locked it. She telephoned the police, the paramedics and relatives. When she turned on the light, she discovered that her husband, with whom she had been sleeping, was dead, having been shot in the head. Mrs. Smith stated that because of the shock she remembered little else that occurred that night. She did remember opening the bedroom window and telling her brother-in-law, whom she had telephoned, not to enter the house because appellant was in the hall, possibly still armed.

Mrs. Smith stated that appellant is her only son and that he was forty-one years old. Only Mrs. Smith, her husband, and the appellant were staying in the house that night. Appellant had come to stay at their home on Tuesday, May 6, 1980, because he was ill and had been there continuously since that date. There had been no argument or disagreement between appellant and his parents during his stay. In Mrs. Smith's words the three of them "were getting along real well." Appellant had helped his father get his boat that day, and they had all gone to the cemetery to decorate the graves of appellant's grandparents. Later, before Mrs. Smith retired to bed, she had taken ice to appellant's bedroom because he had a fever and had told him to awaken her if he needed her. She testified that appellant resided with her at the time of the trial.

John Grainger, a patrolman with the Hueytown Police Department, said he answered a call at 3216 Crescent Drive in Hueytown on May 9, 1980. Upon arrival he observed Mrs. Smith standing at a window in the house shouting that she and her husband had been shot. He went to the window and saw the wounded couple in the bedroom. Mrs. Smith told him that her son was in the house and was armed. As Officer Grainger attempted to remove the window screen, the porch light came on and a bathrobe was waived out through the door. Appellant then said, "I'm coming out and I'm unarmed." Appellant slowly exited the house in his pajamas with his hands up. Officer Grainger instructed appellant to lie down and then handcuffed him and placed him in the patrol car. Appellant was cooperative and told Grainger he was glad he had arrived. Patrolman Grainger was not questioned as to, nor did he have occasion at trial to relate, his impression of appellant's sanity or behavior.

Michael Laughlin, a social acquaintance of appellant's, testified that he had known appellant for twenty-five years, having attended high school and college together. Because they were both engineers, they had continuing and frequent social and business connections. He stated that appellant's reputation for peace within the community was good.

Ann Benson, a friend of appellant's family for thirty-five years, testified to appellant's good reputation for peace and quietude. She further testified that she observed appellant on Friday, May 8, 1980, around 3:00 p. m. at his parent's home. Appellant was unable to concentrate on their conversation and tried unsuccessfully for thirty minutes to put food in his mouth. Appellant's father, mother, and cousin, Wayne Greer, were also present.

Haddie Mae Pinson, appellant's aunt and the victim's sister, stated that she talked by telephone to appellant on May 8, 1980. He told her there was a conspiracy going on and, in general, talked "crazy." She saw appellant, his father and mother the following day and accompanied them to a cemetery. She said appellant did not look himself and did not make sense in his conversation.

Walter Wayne Greer, appellant's cousin and a frequent hunting companion, went to visit appellant at his parent's home on May 9, 1980, around 1:00 p. m. because appellant was sick. Greer testified that appellant was unable to relate to the conversation and spoke of "illusions" he was having. Appellant told Greer that when he turned on the faucet the water came out blue and that he could see television and other visions with his eyes closed. Appellant also stated he was watching a truck being loaded through a sliding glass door. When Greer looked through the same glass door, all that was visible was a six-foot redwood wall. Appellant also told his father and Greer that the motor on his father's boat was "tore up." When Mr. Smith and Greer went and looked at the motor, they found that nothing was wrong with it. Greer stated he knew that appellant drank, but he had never seen appellant drunk or out of control because of drinking. Greer did not smell any alcohol on appellant's breath on the afternoon of May 9, nor did he see any sign of alcoholic beverages in the area. Because appellant was not acting normally that afternoon, it was Greer's opinion that appellant appeared to be insane.

Dorothy Smith, appellant's mother, was recalled and testified to the constant sobriety of her son during his stay in her home during the period in question. She stated that no alcoholic beverages were kept in her home. She also stated that appellant ate and slept very little during this period other than to doze infrequently and that he did not act like himself. His temperature, which she took daily, remained around 102o the entire time, and he was coughing and sneezing. Appellant became so ill that she and her husband took appellant to the emergency room at Lloyd Noland Hospital early the morning of May 8, 1980. The antibiotic and cough medicine prescribed at the emergency room were the only medicines or drugs she observed him take.

Although appellant and his father got along well, Mrs. Smith testified that her husband at one time had, at her urging, signed a warrant against appellant for trespassing. Appellant had been drinking and had entered his parent's home in their absence without a key to obtain some clothes. This family incident had been resolved however and was not a source of strife. Appellant and her husband hunted, fished, and golfed together frequently.

Dr. Allen Edgar Scheele, a clinical psychologist employed with the University of Alabama School of Medicine, was called by appellant to testify. Dr. Scheele stated that his work was in large part diagnostic and included preparing evaluations of the psychological suitability of applicants for the Birmingham Police Department and the Jefferson County Sheriff's Department. He stated that he interviewed appellant twice and appellant's mother once. He also administered a Minnesota Multiphasic Personality Inventory Test to appellant. As a result of the interviews and testing, Dr. Scheele was able to draw a conclusion as to appellant's mental condition at that time, although he did not make a formal diagnosis. He found that no major medical disorder existed at the time of the testing. However, based upon appellant's medical history surrounding the time when he shot his father, Dr. Scheele testified that he believed that at the time the shooting occurred appellant was suffering from a psychosis caused by "brain damage-physical brain disease" resulting from alcohol withdrawal and fever from the pneumonia. He did not believe appellant could have appreciated the wrongful nature of his action or even known what he was doing. Dr. Scheele's opinion was that at the time of the shooting appellant lacked the capacity to be able to appreciate and perform the requirements of the law. He testified that appellant's peaceful surrender was not out of character with his diagnosis, and such compliance was consistent with behavior to be expected from one in that condition. Dr. Scheele stated that organic brain syndrome is reversible and clears up, along with the psychosis, within a few days.

Dr. William M. Harris, Jr., testified that he treated appellant at the Lloyd Noland Hospital emergency room on May 8, 1980. In his opinion appellant had pneumonia of the left lobe. Appellant had a temperature of 101.5o and his pulse was rapid. X-rays taken of appellant also indicated pneumonia. Dr. Harris prescribed penicillin, decongestant, codeine, erythromycin,...