Thomas v. State

• Citation: 511 So.2d 248
• Decision Date: 10 February 1987
• Docket Number: 1 Div. 124
• Parties: Wallace Norrell THOMAS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 248

511 So.2d 248

Wallace Norrell THOMAS v. STATE.

1 Div. 124.

Court of Criminal Appeals of Alabama.

Feb. 10, 1987.

Rehearing Denied March 10, 1987

Certiorari Denied June 26, 1987

Alabama Supreme Court 86-823.

James H. Lackey, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and William W. Whatley and John D. Gibbs, Asst. Attys. Gen., for appellee.

PATTERSON, Judge.

The appellant, Wallace Norrell Thomas, appeals the trial court's denial of his petition for writ of error coram nobis wherein he contests the validity of his 1982 conviction for capital murder, pursuant to prosecution under § 13-11-2(a)(2), Code of Alabama 1975, and his resulting sentence of death by electrocution.

The offense for which Thomas was eventually convicted was committed on December 20, 1976. In 1977, Thomas was first tried, convicted, and sentenced to death. However, this conviction and death sentence were reversed, and the cause was remanded for a new trial, pursuant to Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), and Beck v. State, 396 So.2d 645 (Ala.1980). Thomas v. State, 400 So.2d 435 (Ala.Cr.App.), cert. denied, 400 So.2d 435 (Ala.1981). On retrial in May 1982, Thomas was again found guilty, and the jury recommended imposition of the death penalty. Thereafter, the trial court sentenced appellant to death upon its finding that the sole mitigating circumstance, that Thomas has no significant history of prior criminal activity, was "far outweigh[ed]" by the two aggravating circumstances, (1) that the capital offense was committed while Thomas was engaged in the commission of a robbery and (2) that the capital offense was especially heinous, atrocious, or cruel. This conviction and sentence were affirmed by this court and our supreme court. Thomas v. State, 460 So.2d 207 (Ala.Cr.App.1983), aff'd, 460 So.2d 216 (Ala.1984).

This court detailed the facts of the capital offense at length in Thomas v. State, 460 So.2d at 209-11, and we reiterate them here only to the extent that they are necessary for our disposal of the issues raised on appeal. At approximately 6:30 on the evening of December 20, 1976, Miss Quenette Shehane left her fiance's residence at Birmingham-Southern College to go to a store nearby. On that same afternoon, in an apartment located across the street from Birmingham-Southern, John Mays, Jerry Jones, Eddie Bernard Neal, and appellant discussed "going out and pick[ing] up some young girls." All but Mays then left. Later, after Mays left his apartment and was walking by the "U-Tot-Em," he observed the following: A man pushed a young woman, who was struggling, into a car; this car left; and a car like Jones's car followed. At approximately 9:30 that evening, a friend picked up appellant, Neal, and Jones at a store located about one-half mile from where Miss Shehane's car was eventually found. Jones and Neal had blood stains, some heavy, on their clothes, in the chest area; there was no blood on appellant.

The following morning, Miss Shehane's nude and bullet-riddled body was found in an isolated area. Her body had numerous abrasions; three bullet wounds to the buttocks area; four bullet wounds to the left elbow; and one bullet wound, inflicted at close range, to the left chest. Her car was discovered three and one-half miles from the location of her body. Appellant's right palm print was lifted from the outside of the window of the right rear door. On the center section of the front seat was a stain, which by analysis, was determined to be human semen. On the victim's coat was a dark brown Negro pubic hair. Human blood was found on the car's right rear fender.

Appellant was arrested on January 28, 1977. A pistol which he had dropped in the presence of the officers was recovered. The pistol's serial number had been filed off. A comparison of bullets fired from this weapon with the four recovered from Miss Shehane's body and the one found in Miss Shehane's car revealed that the latter five bullets had been fired from the same gun which had been in appellant's possession.

Finally, after his arrest, appellant called his roommate and instructed him to dispose of a television which was in appellant's apartment and which had been seen in appellant's possession prior to Christmas. It was later determined that this same television had been in Miss Shehane's car when she was abducted, robbed, and murdered.

I

Thomas first contends that the trial court erroneously denied his petition as to the specific ground that his trial counsel, the Honorable Al Hultquist, rendered ineffective assistance by failing to utilize a May 1977 report by Herbert W. Eber, Ph.D., a licensed psychologist. ¹ In this report, Eber had the following data upon which to base his conclusions: Conclusory information "prepared by an automated method which had no awareness of the circumstances" and Eber's knowledge of Thomas's circumstances which are that Thomas was tested in the county jail and that Thomas's attorney informed him that Thomas was charged with a capital offense. Eber synthesized this information, in part, as follows:

"There is no question whatever that this client is psychotic within the meaning of that term in mental health. He is a grossly disturbed person whose mental illness and additional disturbance interfere extremely with his functioning. His judgment is impaired, his reality contact is extremely poor, his depression is extreme, and his self destructive impulses are also severe and thus constitute a massive danger to himself. Motivational patterns are grossly confused, and from a treatment standpoint, this would be seen as a person who is desperately in need of psychiatric treatment....

"The legal issues of insanity are somewhat different, since more rigid standards are applied. It is my opinion, however, that this man's condition warrants the legal definition of insanity and incompetence in terms at least of his present status. While he is clearly of sufficient intelligence to understand the nature of charges and the nature of his actions, he is equally clearly grossly psychotic, grossly out of contact with reality, and thus not able to exercise anything approaching normal judgment and discretion in the management of his own affairs. I would not consider him competent to assist the attorney in his own defense.

"Since the data we have were not obtained at the time of the alleged crime, any judgment about the client's mental status at that time must be an inference based upon our knowledge of progression of such disorders. Assuming that, at the time of the alleged crime, the man was not undergoing active psychiatric treatment which has since been terminated, it is my judgment that he was at the time of the alleged crime, in essentially the same condition that is shown in the present data. That would in turn imply that he was then insane and incompetent within my understanding of the legal meaning of those terms."

Thomas summarized his argument of counsel's ineffectiveness, as follows: "Petitioner contends that the failure to properly investigate the Eber report, and failure to use the report or to have Dr. Eber testify, at least in the sentence hearing or the aggravation and mitigation hearing before the judge constituted ineffective assistance of counsel." (Brief, p. 32.)

In addressing Thomas's argument, we first note that Eber's conclusions are basically in direct conflict with the following findings of Dr. B.E. Blankenship and Donna C. Click, a psychiatric social worker, who evaluated Thomas on June 24, 1977: "There is no evidence of psychiatric illness. He appears to be a sociopath and is competent to stand trial." Eber's conclusions also contradict the findings of a psychological and psychiatric evaluation by the staff of Searcy Hospital at the request of the trial court for its consideration of sentencing in Thomas's first trial. (The report, dated December 15, 1977, notes that Thomas was admitted to Searcy Hospital on November 28, 1977.) This "evaluation included physical examination, mental status examination, psychological examination, social history study, neurological evaluation and psychiatric evaluation." After psychological examination, the following conclusions were made:

"Mr. Thomas is an active, aggressive young man with average intellectual and ego resources. There is no indications of organicity, thought disorder or psychosis. Overall profile is that of a shrewd and resourceful individual who displays several features of antisocial personality."

After "[c]omprehensive psychiatric evaluation [which] included at least five psychiatric interviews during different days," the staff concluded that Thomas

"demonstrates a high potential for violence with very little feeling of remorse, guilt, or regard for the distress or plight of other persons. It was the opinion of the examinating [sic] psychiatrist that Wallace Norrell Thomas is sane and competent, knows the difference between right and wrong and is able to cooperate and communicate with legal counsel in any type of legal proceeding. His diagnosis was given as Antisocial personality, severe."

In our evaluation of counsel's failure to utilize the Eber report or Eber's testimony in any phase of the proceedings, we adopt the findings of the trial judge (who also presided over Thomas's trial). We consider these findings to be supported by the exhibits introduced and the testimony taken at the hearing on Thomas's petition. We have added our own independent findings where appropriate:

"The following are taken as facts concerning Al Hultquist's representation as a whole:

"(1) Petitioner Thomas was represented at trial by Al Hultquist, who was assisted in jury selection by Al Pennington. Both are experienced and capable criminal defense attorneys. At the time of Petitioner's trial, Hultquist had over six years experience in criminal law and had represented defendants in 50 to 100 felony trials. In addition, as an ...