Whisenhant v. State, 1 Div. 333

• Decision Date: 23 August 1988
• Docket Number: 1 Div. 333
• Citation: 555 So.2d 219
• Parties: Thomas Warren WHISENHANT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 219

555 So.2d 219

Thomas Warren WHISENHANT v. STATE.

1 Div. 333.

Court of Criminal Appeals of Alabama.

Aug. 23, 1988.

Rehearing Denied Sept. 20, 1988.

Morris S. Dees and J. Richard Cohen, Montgomery, for appellant.

Don Siegelman, Atty. Gen., and Ed Carnes and William D. Little, Asst. Attys. Gen., for appellee.

ON RETURN TO REMAND

TYSON, Judge.

This is an appeal following a second sentencing hearing in this cause conducted pursuant to the opinion of the Supreme Court of Alabama in Ex parte Whisenhant, 482 So.2d 1247 (Ala.1984).

This appellant was first convicted and sentenced to death for the murder of Cheryl Lynn Payton in 1977. This trial was held in Jefferson County after venue was changed from Mobile County. On February 20, 1979, his conviction was reversed by this court because of an improper prosecutorial closing argument. Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.1979). This appellant was retried in August of 1981 in Mobile County and was again convicted and sentenced to death. On November 23, 1982, his conviction was affirmed, but the case was remanded for a new sentencing hearing because of prosecutorial comments in the opening statements of his sentencing hearing. Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982). On cross petitions for certiorari, the Supreme Court of the State of Alabama remanded this cause for a determination of whether the error was harmless. Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983). The Alabama Court of Criminal Appeals ruled this error harmless and affirmed the death sentence. On May 11, 1984, the Supreme Court of the State of Alabama reversed, remanding the case to this court with directions that this cause be remanded to the trial court 482 So.2d 1247 (Ala.1984). On June 26, 1984, 482 So.2d 1249, the Alabama Court of Criminal Appeals remanded this cause to the Circuit Court of Mobile County for a new sentencing hearing pursuant to the opinion of the Supreme Court of the State of Alabama in Ex parte Whisenhant, 482 So.2d 1247 (Ala.1984).

Following this hearing, the jury's unanimous verdict recommended the death sentence be imposed. The trial judge conducted a separate hearing sentencing this appellant to death by "electrocution." (The trial judge's findings and order are hereinafter attached as Appendix A.) The Alabama Court of Criminal Appeals has jurisdiction in this matter pursuant to the Alabama Automatic Appeals Statute, § 12-22-150, Ala. Code (1986).

This court adopts the facts as set out in this court's original opinion of Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.1979).

From this hearing and order, this appellant raises fourteen issues in his original brief and seven issues in his appeal of this sentencing hearing. These issues will be addressed in sequence below.

I

The appellant reasserts many of the same issues which this court has previously addressed. Issues I through XII of Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982), and this court's holding in Whisenhant v. State, supra, and Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983), are dispositive of these issues. Issues IV and V of the appellant's original brief will hereinafter be addressed.

II

Issue IV of the appellant's original brief was not addressed in Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982). Issue IV and issue V of the appellant's original brief allege prejudice to this appellant and a denial of the appellant's right to reliability in the capital sentencing process due to prosecutorial comments during the sentencing hearing. This court remanded this cause to the circuit court because of prosecutorial comments in this matter. Because of this court's decision to remand this cause in Whisenhant v. State, supra, these issues are no longer applicable to this cause and will not be addressed by this Court. The order of a new sentencing hearing prevents the appellant from reasserting these issues due to the absence of this error in the subsequent hearing.

III

This appellant alleges that the trial judge erred in refusing to recuse himself. There was no error in the trial judge's refusal to recuse himself in this cause. The appellant's argument is based on a statement by the trial judge which the appellant claims shows a predisposition to reject two mitigating circumstances which the appellant planned to base his claim for a sentencing of life without parole.

This statement occurred in the trial judge's ruling in the defendant's motion in limine to prohibit the State from calling the victim's husband or family members as witnesses.

The statement in question and the judge's response to the appellant's counsel's motion to recuse are stated below.

"THE COURT: You all want to comment on that?

"MR. GALANOS: Yes, sir. Number one, we're in a posture where this jury obviously will not have heard any of the facts and though identity is not in issue, Douglas Payton could--

"THE COURT: I would be very, very surprised if the State--if this jury didn't hear all the evidence, but go ahead.

"MR. GALANOS: Douglas Payton can identify clothes found in the Defendant's truck as being his wife's clothes, Douglas Payton can say that he left--took his wife to work that day at or about 2:30 in the afternoon and he can also relate the circumstances of her disappearance.

"THE COURT: Yeah, you know, Mr. Dees, you and I both have tried this case a number of times. I think it would be putting a strangle hold on the State that I shouldn't do and I think it even goes back to your insanity question. The victim in this case, as I recall the evidence, was abducted with Entebbe precision and he certainly has to--you know, which an irrational person I do not believe could have formed. But he is--he's in the position--you're asking me to put the State in the position of not telling the jury the entire story. So, I can't do that. So, I deny that motion.

"MR. DEES: Your Honor, at this time I renew my motion for recusal based on the remark the Court just made about the Court's opinion of the evidence in the prior trial of the Defendant kidnapping with Entebbe precision that no irrational person could do, which means the Court has already--based on facts the Court already knows, has already got a fixed "THE COURT: Well, if that's what you take from that remark, you're entitled to do that, but I don't agree with it.

opinion as to whether the Defendant would be--would violate--

"All right, the next motion--

"MR. DEES: Pardon me, sir, can I finish that for the record?

"THE COURT: You may--

"MR. DEES: That the Court has already in effect rejected mitigating circumstances number five and number six of 13-11-6, Code of Alabama, 1975, which applies in this case.

"THE COURT: Well, I don't think I have, but you have your record.

"MR. DEES: Well, you haven't denied that motion.

"THE COURT: I deny that motion.

"MR. DEES: Thank you, sir."

The appellant has failed to present evidence that creates a doubt as to this judge's ability to preside over this matter with impartiality. While Canons of Judicial Ethics relating to a judge's duty to disqualify himself has the force of law, both judges and the bar should be aware that recusal is not required on mere accusation of bias unsupported by substantial fact. Canon of Judicial Ethics, Canon 3, subd. C(1). Taylor v. Taylor, 359 So.2d 395 (Ala.Civ.App.1978); Ross v. Luton, 456 So.2d 249 (Ala.1984); Duncan v. Sherrill, 341 So.2d 946 (Ala.1977); Moreland v. State, 469 So.2d 1305, cert. denied, 469 So.2d 1305 (Ala.Cr.App.1985).

"The failure by the judge who presided at the defendant's original capital murder trial to recuse himself at the second sentencing hearing, following reversal of the original sentencing order, was not improper, in absence of any evidence to substantiate defendant's assertion of personal bias." Rutledge v. State, 523 So.2d 1087 (Ala.Cr.App.1987), reversed on other grounds, Ex parte Rutledge, 523 So.2d 1118 (Ala.1988).

"While a true personal bias will disqualify a jury, a judicial bias, if one exists, will not disqualify a trial judge from hearing a case. Koch v. State, 401 So.2d 796 (Ala.Cr.App.), cert. denied, 401 So.2d 801 (1981). Appellant has failed to demonstrate any semblance of a personal bias on the part of the trial judge." Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982); Moreland v. State, 469 So.2d 1305 (Ala.Cr.App.1985); McMurphy v. State, 455 So.2d 924 (Ala.Cr.App.1984); Lokos v. State, 434 So.2d 818 (Ala.Cr.App.1982), aff'd, 434 So.2d 831 (Ala.1983). In this instance, the judge stated that his views were founded on evidence presented at the previous trial of this cause. Moreover, a personal bias is one of extra-judicial origin; thus, if any bias existed in this instance, then it would be a judicial bias. Koch v. State, supra; Ex parte White, 53 Ala.App. 377, 300 So.2d 420, 430, cert. denied, 293 Ala. 778, 300 So.2d 439 (1974). However, a careful review of the record in this cause shows that the trial judge carefully considered this appellant's evidence relating to this appellant's mental condition.

IV

The appellant alleges that the trial court's denial of his motion for change of venue violated the appellant's rights to due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States.

Section 15-2-20, Code of Alabama, 1975, states that a defendant is entitled to a change of venue to another county if he can show to the reasonable satisfaction of the trial court that a fair and impartial trial cannot be had in the county from which the indictment is found. This appellant has the burden of proof in proving that he could not receive a fair trial in Mobile County. Acoff v. State, 50 Ala.App. 206, 278 So.2d 210 (1973); Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983); Ex parte Magwood, 426 So.2d 929 (Ala.), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983).

"The determination of whether or not to grant a change of venue is a matter generally left to the sound...