Whisenhant v. State
| Decision Date | 11 May 1979 |
| Citation | 370 So.2d 1106 |
| Parties | In re Thomas Warren WHISENHANT v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL. 78-426. |
| Court | Alabama Supreme Court |
Petition for Writ of Certiorari to the Court of Criminal Appeals, 370 So.2d 1080.
Charles A. Graddick, Atty. Gen., James F. Hampton, J. Anthony McLain, Asst. Attys. Gen., for the State, petitioner.
No brief for respondent.
WRIT DENIED.
I would grant the writ. The Court of Criminal Appeals, in its opinion, says:
Then why is the perpetrator of this crime entitled to a new trial? Because, says a majority of the Court of Criminal Appeals, and a majority of this Court, the district attorney made a prejudicial argument to the jury and the jury verdict did not find Whisenhant guilty of a capital offense. I have read the opinion of the Court of Criminal Appeals and the State's petition and brief, and I think that the Court of Criminal Appeals may have misapplied the law contained in prior decisions of this Court in reaching the conclusion that the prosecutor's argument was prejudicial. Judge Bookout, of the Court of Criminal Appeals, was of the opinion that the prosecutor's comments were "legitimate argument on the issue of the appellant's sanity and a legitimate reply in kind to arguments made by defense counsel." I think the State has shown probable merit on its request to review the issue of the prejudicial effect of the prosecutor's argument; therefore, I would grant the writ on this ground.
I would also grant the writ on the additional ground that it should be clear to anyone, even those not learned in the law, that the jury, by finding the defendant "guilty of capital murder as charged in the indictment and fix his punishment at death by electrocution," decided the question in issue in such a way that the trial court was able to enter a judgment. That is all that the law requires, at least that is all that the law required until this Court released Clements (V. State Ala., 370 So.2d 723, 1979) one of the cases followed by the Court of Criminal Appeals here. I dissented in Clements and I will respectfully continue to dissent when Clements is cited as authority because I think Clements was incorrectly decided.
There is no question but that Whisenhant was charged with a Capital felony, that he was tried on that charge,...
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Davis v. State
... ... insanity that makes one incapable of committing a crime'), cert. denied, 370 So.2d 1106 (Ala.1979); Whisenhant v. State, 370 So.2d 1080, 1095-96 (Ala.Cr.App.), cert. denied, 370 So.2d 1106 (1979) (a finding that a diminished capacity mitigating circumstance exists `may be based on evidence of a lesser standard than is necessary to find insanity')." ... 686 So.2d at 503 ... The jury and ... ...
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Grady v. State
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Ivery v. State
... ... insanity that makes one incapable of committing a crime"), cert. denied, 370 So.2d 1106 (Ala.1979); Whisenhant v. State, 370 So.2d 1080, 1095-96 (Ala.Cr.App.), cert. denied, 370 So.2d 1106 (1979) (a finding that a diminished capacity mitigating circumstance exists "may be based on evidence of a lesser standard than is necessary to find insanity.") ... The trial court's sentencing order ... ...
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Smith v. State
... ... insanity that makes one incapable of committing a crime'), cert. denied, 370 So.2d 1106 (Ala.1979) ; Whisenhant v. State, 370 So.2d 1080, 109596 (Ala.Cr.App.) cert. denied, 370 So.2d 1106 (1979) (a finding that a diminished capacity mitigating circumstance exists 'may be based on evidence of a lesser standard that is necessary to find insanity')." We further find, in addition to its erroneous interpretation ... ...