Whisenhant v. State

Decision Date23 November 1982
Docket Number1 Div. 333
Citation482 So.2d 1225
PartiesThomas Warren WHISENHANT v. STATE.
CourtAlabama Court of Criminal Appeals

John L. Carroll and Morris S. Dees, Montgomery, for appellant.

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

TYSON, Judge.

Appellant was originally sentenced to death on September 7, 1977, for the rape and murder of Cheryl Lynn Payton. That conviction was reversed by this Court on February 20, 1979, because of improper closing argument by the prosecutor and because of a variance between the indictment and judgment. Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.), cert. denied, 370 So.2d 1106 (Ala.1979). Appellant was retried and convicted under § 13A-5-31(a)(3), Code of Alabama 1975, for the capital felony of rape when the victim, Cheryl Lynn Payton, was intentionally killed. After a separate hearing on aggravating and mitigating circumstances, the jury fixed appellant's punishment at death. Subsequently, the trial court weighed the aggravating and mitigating circumstances pursuant to § 13A-5-33, Code of Alabama 1975, and sentenced appellant to death. The court issued written findings of fact which enumerated the aggravating circumstances it deemed sufficient to support the sentence of death. 1

The shocking facts surrounding the intentional killing of Cheryl Lynn Payton by appellant are set forth in detail in our previous opinion and are incorporated by reference herein. Whisenhant, supra.

I

Appellant contends the trial judge erred in denying his motion for funds to employ two named independent psychiatrists of appellant's own choice.

The thrust of appellant's motion was to request funds in the amount of $3500 for the exclusive purpose of hiring two specifically named psychiatrists, Dr. Claude Brown and Dr. Emmanuel Tanay. A general request for non-specified psychiatric experts was not made by appellant, nor was a request for a re-evaluation by State psychiatrists submitted.

Appellant's motion asserted that neither Dr. Brown nor Dr. Tanay would assist the appellant by testifying at trial in the absence of payment for their assistance. The motion admits that both psychiatrists had previously extensively evaluated appellant and that testimony or reports by both men were admitted at the previous trial. It appears that the motion requested funds primarily to pay for their trial testimony at this trial, and not funds to conduct initial psychiatric evaluations of appellant.

Despite the assertion by appellant's counsel at trial and in brief, Dr. Brown did appear and testify as a State's subpoened witness at the final phase of the instant trial. At that hearing, Dr. Brown specifically stated that his opinion as to appellant's sanity at the present time had not changed from the time of his testimony at appellant's prior trial. Dr. Brown then testified as follows:

"Q Now, Doctor, if the Defense had called you to the stand here in Mobile County, Alabama, in the case of State of "A I'm sure in essence it would have been, yes.

Alabama v. Thomas Whisenhant which was tried this year, would your testimony have been the same as it was back in 1977?

"Q In essence it would have been the same testimony?

"A Right.

"Q Okay, did the Defense call you to testify?

"A No.

"Q Did they subpoena you, Doctor?

"A Not that I recall.

"Q Doctor, if the defense had called you to testify and had placed you under oath within the Court of law and in front of the jury in the case that was tried here just a little while ago in this courtroom, would your testimony have been essentially the same, even if you had not been paid one nickel by the Defense?

"A Yes.

"Q Doctor, the Defense at this time, did they ever pay you anything with regard to your fee on the Whisenhant case?

"A In 1977, yes.

"Q Right.

"A They did.

"Q Okay. In 1981 did they pay you anything at all?

"A No.

"Q And even if they had not paid you and they had brought you down here and had put you on the stand and has (sic) asked the same questions that were in the last trial, your testimony would have been essentially the same?

"A Yes."

(R. 729-720)

Another ground asserted by appellant for granting his motion for funds for the two named experts was that their testimony was necessary to rebut the testimony of State's witnesses Doctors Rudder, Kimbrough, Harrison, Kathandopondi, and Skinner, whom appellant presumed would testify for the State at the second trial. The record reveals that none of these men testified at appellant's second trial.

A defendant may have the right to the appointment by the State of an expert where it is shown to be necessary for an adequate defense. Clisby v. State, 456 So.2d 86 (Ala.Cr.App.1982); Annot. 34 A.L.R.3d 1256 (1970). However there exists no constitutional right to the appointment of a private psychiatrist of a defendant's own choosing at public expense, as requested by appellant. Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir.), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978); Clisby, supra; Thigpen v. State, 372 So.2d 385 (Ala.Cr.App.), cert. denied, 372 So.2d 387 (Ala.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 690, 62 L.Ed.2d 660 (1980).

As in Satterfield, supra, appellant was examined by psychiatrists at a State mental hospital and found competent to stand trial. No motion was made by appellant's counsel at the second trial for a reexamination by the State hospital or for a psychiatric examination generally. We find as in Satterfield, that in light of the use of State statutory provisions for committing a criminal defendant to a State mental facility for examination and observation, no further duty devolves upon the State to appoint a private psychiatrist of appellant's own choosing at State expense for the benefit of indigent defendants. Here, as in Satterfield, the reports and testimony of the State psychiatrists indicating appellant's mental sanity were not submitted into evidence against appellant by the State.

Dr. Brown's testimony at the sentencing hearing indicated he could and would have testified as to appellant's insanity, based on his prior examination of appellant, had appellant's counsel chosen to subpoena him to testify at trial. Appellant could have procured psychiatric testimony, in addition to that of the State hospital personnel had he chosen to do so. See Williams v. Martin, 618 F.2d 1021 (4th Cir.1980) distinguishing Satterfield, supra.

As well, the trial court, pursuant to § 15-12-21(d), Code of Alabama 1975, granted appellant the statutory maximum Considering the availability of the State psychiatric staff to testify; the appellant's knowledge of and access to the prior reports and testimony of Doctors Brown and Tanay, as well as the availability of Dr. Brown's present testimony; the lack of any positive testimony as to appellant's sanity by the State psychiatric experts; the $500 expense fee allowed by the trial court; and the appellant's failure to request other than specified private experts of his own choosing, we find no possible deprivation of any constitutional right of appellant in the matter of his sanity.

                of $500 for use in obtaining expert assistance of his own determination, such to include "a psychologist to perform intelligence and personality tests on the defendant."   To the extent the trial court felt the legislature had deemed appropriate, it granted appellant's motion for funds for expert witnesses.  See Harris v. State, 352 So.2d 460 (Ala.Cr.App.1976), affirmed, 352 So.2d 479 (Ala.1977)
                
II
A

Appellant argues the trial judge erred in excluding certain jurors from the jury venire based upon their expressed opposition to the imposition of capital punishment. He contends the questions asked by the trial court were inadequate to excuse those jurors under the standard formulated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).

In Witherspoon the test for excluding jurors is formulated as follows:

"[N]othing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case."

391 at 522, 523, n. 21. (Emphasis added).

The questions asked of the jurors excused from the venire on this basis appear in the record as follows:

"Is there any member of this jury who does not believe in the death penalty?

"Now that I have asked that question I will ask several other questions, but first I will get your name, please, sir.

"JUROR: Francis Martin?

"THE COURT: Francis Martin?

"JUROR: M-A-R-T-I-N.

"THE COURT: He's number 19 in panel number 2. Now, Mr. Martin, are you telling me that regardless of the facts and circumstances in this case, regardless of whatever the evidence may be, that because of your belief--that is, that you do not believe in the death penalty--that regardless of the facts and circumstances that you would automatically vote not guilty rather than vote death by electrocution?

"JUROR: No, sir, I wouldn't vote that. What I would vote by sending him to the electric chair is not going to bring the one he killed back. I would rather see him work continuously until he is dead or until he is passed away, to let him know that the life he taken--

"THE COURT: All right. Just a minute.

"JUROR: --that he suffer for the life he had taken.

"THE ...

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