Whisenhant v. State

• Decision Date: 20 February 1979
• Docket Number: 6 Div. 634
• Citation: 370 So.2d 1080
• Parties: Thomas Warren WHISENHANT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1080

370 So.2d 1080

Thomas Warren WHISENHANT v. STATE.

6 Div. 634.

Court of Criminal Appeals of Alabama.

Feb. 20, 1979.

Rehearing Denied March 27, 1979.

Morris S. Dees, John L. Carroll, Dennis N. Balske, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and James F. Hampton and J. Anthony McLain, Asst. Attys. Gen., for the State.

HARRIS, Presiding Judge.

This is a death penalty case. Appellant was indicted on May 7, 1977, by the Grand Jury of Mobile County for the rape and intentional killing of Cheryl Lynn Payton. The indictment was in three counts, but, at the conclusion of the trial, the trial court struck the third count.

Omitting the formal parts of the two counts upon which appellant was tried read as follows:

"The Grand Jury of said county charge, before the finding of this indictment, Thomas Warren Whisenhant, alias Tommy Whisenhant, whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully and intentionally and with malice aforethought kill Cheryl Lynn Payton by to-wit: on October 16, 1976, during the nighttime the said Thomas Warren Whisenhant, alias Tommy Whisenhant abducted, at gunpoint, the said Cheryl Lynn Payton from the Compact Store located at the intersection of Nan Gray Davis Road and Sweedtown Road in Mobile County, Alabama, where the said Thomas Warren Whisenhant ravished the said Cheryl Lynn Payton and intentionally killed her by shooting in the head with a gun in violation of Act No. 213, Section 2, Sub-section c (Act 213, Section 2(c) Acts of Alabama, Regular Session, 1975, against the peace and dignity of the State of Alabama.

"The Grand Jury of said County further charge, that, before the finding of this indictment, Thomas Warren Whisenhant, alias Tommy Whisenhant, whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully, intentionally and with malice aforethought kill Cheryl Lynn Payton by shooting her with a pistol after the said Thomas Warren Whisenhant, alias Tommy Whisenhant, had ravished the said Cheryl Lynn Payton, against the peace and dignity of the State of Alabama."

On December 13, 1976, appellant was ordered sent to Searcy Hospital for psychiatric examination to determine whether he was competent to stand trial. The following report was returned to the court on February 24, 1977.

"Under the provisions of an Act of the Legislature of Alabama, approved April 17, 1933 (Title 15, Section 425, Code of Alabama recompiled 1958 and as amended by Act 881 Acts of Alabama 1965) one Thomas W. Whisenhant, charged with the offense of Murder in the First Degree, was admitted in the Searcy Hospital, Mount Vernon, Alabama, on December 13, 1976, under order of Honorable Joseph M. Hocklander, Circuit Judge, Circuit Court of Mobile County, Alabama, dated December 13, 1976, for psychiatric examination, observation and report as provided in the act referred to herein. Further, the commitment order specifies examination in compliance with Title 15, Section 426 and Title 15, Section 428.

"In accordance with the provisions of the acts referred to above, the Superintendent of the Searcy Hospital appointed Dr. Claude L. Brown, Jr., Consultant Psychiatrist, Dr. James E. Kimbrough, Staff Psychiatrist, and Dr. William H. Rudder, Consultant Psychiatrist, who constitute the undersigned commission. After having the said Thomas W. Whisenhant under our study and observation continually from the date of admission until the present date, we desire to submit the following report:

"After full study and a long period of observation, it is the opinion of each of us separately, and our opinion jointly and collectively, that the said Thomas W. Whisenhant is presently sane and competent to stand trial; knows the difference between right and wrong; can assist counsel in his defense; and can adhere to the right. The condition of Mr. Whisenhant as observed by each examiner individually throughout his hospitalization has remained unchanged from the time of the first examination to the last examination. His behavior as observed by staff has been basically unchanged from the time of admission and has not been aberrant or psychotic. It is our further opinion that it is possible that he lacked adequate control at the time of the commission of the crimes for which he is charged.

"Under the provisions of the acts referred to above, we understand that with the rendering of this report our obligation and that of the Searcy Hospital has been discharged, and therefore, the Court will cause the proper order to be made for the transfer of the said Thomas W. Whisenhant to its jurisdiction and thus relieve the Searcy Hospital of further responsibility in this case. He will be discharged to the Sheriff of your county or such other person with written authority directed to this institution.

"Awaiting your further order or that of the Sheriff of Mobile County, Alabama.

"Respectfully submitted,

"Signed and executed this the 24 day of February, 1977, at the Searcy Hospital, Mount Vernon, Alabama.

/s/Claude L. Brown, Jr., Md.

Consultant Psychiatrist

/s/James M. Kimbrough, M.D.

Staff Psychiatrist

/s/William H. Rudder, M.D.

Consultant Psychiatrist"

Prior to arraignment, on June 16, 1977, the trial court found appellant indigent and appointed Holmes Whiddon, a licensed attorney in Mobile, to represent him. In the presence of Mr. Whiddon and Mr. Morris Dees of Montgomery, who also represented appellant, appellant waived reading of the indictment and entered pleas of not guilty and not guilty by reason of insanity.

The case was put to trial on August 1, 1977, in Jefferson County Circuit Court, appellant's motion for change of venue having been granted on July 15, 1977. The jury returned a verdict on August 9, 1977, finding appellant guilty of capital murder as charged in the indictment. The trial court adjudged appellant guilty, setting out in a written finding of facts that he found aggravating circumstances to outweigh mitigating circumstances in the case, and sentenced appellant to death during a sentencing hearing on September 7, 1977.

The evidence presented tended to show the following facts:

Robert Lowell testified that he was a resident of Theodore, Alabama, in Mobile County. On October 16, 1976, Mr. Lowell passed by a small Compact Store at the corner of Nan Gray Davis and Sweedtown Roads, approximately a quarter till ten o'clock that night. Mr. Lowell identified two photographs of the victim, Cheryl Lynn Payton, as an employee at the Compact Store. On that evening, it was raining heavily and Mr. Lowell saw Mrs. Payton sweeping water from the store's "walk way."

Defense counsel stipulated the photographs depicted Mrs. Payton and stated that he had no objection to them being offered into evidence. These pictures were introduced into evidence.

Tris Lowe testified that he lived on Two Mile Road in Irvington, Alabama, in Mobile County. On October 16, 1976, Lowe and his fiance stopped at the Compact Store on Sweedtown Road, at approximately 8:30 p. m. There he saw Mrs. Payton, whom he identified in the two photographs previously introduced, and bought two cold drinks. Lowe returned to the store at ten o'clock that evening. At that time, no one was in the store and no vehicles were in the parking lot. Lowe saw a coke machine open, with the keys in the lock and a broken "six-pack" of Coca-Colas on the floor, with a mop in a bucket nearby. Lowe then identified four photographs depicting the store, to which defense counsel stated that he had no objection to their being admitted in evidence, and they were admitted. When Lowe found the store empty, he attempted to use the pay phone outside; however, the receiver was "tore up." Lowe also noticed a Miller "pony" inside the phone booth. Using the telephone in the store, Lowe summoned police and remained at the scene until sheriff's deputies arrived.

Gary Risher testified that he was a resident of Spring Hill in Mobile in October of 1976. On Sunday, October 17, 1976, Risher and his friend, George Pendarvis, were hunting on the land of Ed Trippe in Irvington, Alabama. Risher then identified three photographs depicting the area and defense counsel stated that he had no objection to their being introduced in evidence, and they were admitted.

Approximately 6:00 p. m., Risher and Pendarvis saw a man standing slightly off the roadside, watching them drive towards him. Pendarvis called the man over to the car and asked him what he was doing there; to which the man replied, he was "walking around." Then, thinking that the man was out "night-hunting," Pendarvis told him, "Well, we know what you are doing here." Pendarvis only repeated that statement when the man asked what he meant by that. The man then walked on in the direction of Highway 90.

On the next Monday evening, Risher identified the man in a lineup at the Sheriff's Department. Of the six men in the lineup, Risher identified appellant as the man whom he and Pendarvis had seen on Ed Trippe's land the evening before. Risher also identified appellant in court as the same man.

George Pendarvis testified that he was a resident of Irvington, Alabama, in Mobile County. Pendarvis's subsequent testimony paralleled that of Gary Risher.

Charles Edwin Trippe, Sr., testified that he lived in Irvington, Alabama, in Mobile County, where he farmed about five thousand acres of land. On a Sunday evening in October, 1976, Risher and Pendarvis notified Trippe that they had seen someone on his property. Trippe drove down to the plot, where the man had been seen, on Monday, October 18, 1976, and parked his car. When Trippe walked out into the field, he discovered the body of a woman clad only in "knee-high" stockings and a blue denim shirt; there were no cuts on the body. Trippe then reached his house in five minutes and called "the law," and met investigating officers at the south end of North Gulf Boulevard ten to fifteen minutes later. When Trippe returned to the field with two...