Wood v. State

• Decision Date: 25 April 2003
• Citation: 891 So.2d 398
• Parties: Holly WOOD v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

891 So.2d 398

Holly WOOD v. STATE of Alabama.

CR-01-0700.

Court of Criminal Appeals of Alabama.

April 25, 2003.

Rehearing Denied May 23, 2003.

Opinion Affirming on Return to Remand January 6, 2004.

Rehearing Denied February 20, 2004.

Certiorari Denied May 21, 2004.

Joel L. Williams, Troy; John J.P. Howley and Brady W. Mills, New York, New York; and Jessica L. Michaelson, New York, New York, for appellant.

William H. Pryor, Jr., atty. gen., and Henry M. Johnson, asst. atty. gen., for appellee.

Alabama Supreme Court 1030817.

BASCHAB, Judge.

On October 20, 1994, the appellant, Holly Wood, was convicted of the capital offense of burglary-murder. See § 13A-5-40(a)(4), Ala.Code 1975. By a vote of 10-2, the jury recommended that he be sentenced to death. On December 9, 1994, the trial court sentenced him to death. This court and the Alabama Supreme Court affirmed the appellant's conviction on direct appeal, see Wood v. State, 715 So.2d 812 (Ala.Crim.App.1996),

aff'd, 715 So.2d 819 (Ala.1998), and the United States Supreme Court denied the appellant's petition for certiorari review, see Wood v. Alabama, 525 U.S. 1042, 119 S.Ct. 594, 142 L.Ed.2d 536 (1998). The relevant facts of the case are set forth in this court's opinion on direct appeal. This court issued a certificate of judgment on June 9, 1998.

On December 1, 1999, the appellant, through counsel, filed a Rule 32 petition, challenging his conviction and sentence of death. He filed amended petitions on or about September 15, 2000, and July 2, 2001. The State responded and moved to dismiss many of the claims. The circuit court dismissed some of the claims and denied some of the claims after conducting an evidentiary hearing. This appeal followed.

After this case was orally argued and submitted, the United States Supreme Court released its decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In Atkins, the Supreme Court held:

"We are not persuaded that the execution of mentally retarded criminals will measurably advance the deterrent or the retributive purpose of the death penalty. Construing and applying the Eighth Amendment in the light of our `evolving standards of decency,' we therefore conclude that such punishment is excessive and that the Constitution `places a substantive restriction on the State's power to take the life' of a mentally retarded offender."

536 U.S. at 321, 122 S.Ct. at 2252. In his petitions and in his briefs to this court, the appellant argues that he is mentally retarded, that his trial attorneys rendered ineffective assistance because they did not develop and present evidence that he is mentally retarded, and that the application of the death penalty to those who are mentally retarded is unconstitutional. Therefore, we requested that he and the attorney general brief the applicability of Atkins to this case. The parties submitted briefs in support of their respective positions, and we considered those briefs in reviewing this case.

In light of the Supreme Court's decision in Atkins, we must remand this case to the circuit court to allow that court to determine whether the appellant is mentally retarded and whether his trial attorneys rendered ineffective assistance by not developing and presenting evidence that he is mentally retarded. Because the appellant raises several arguments that are related to issues that may arise on remand, we address those arguments in this opinion.¹

I.

The appellant argues that the circuit court erred because, during the evidentiary hearing on his petition, it did not allow him to present expert psychological testimony to support his contentions that he is mentally retarded and that his trial attorneys rendered ineffective assistance during his trial because they did not develop and present evidence that he is mentally retarded.

A.

First, the appellant contends that the circuit court improperly refused to allow Dr. Faye E. Sultan, a clinical psychologist who had examined him, to testify as an expert witness because she was not licensed to practice in Alabama. On August 9, 2001, the State filed a "Motion in Limine to Exclude the Testimony of Dr. Faye Sultan." In that motion, the State argued that Dr. Sultan had not been licensed by the Alabama Board of Examiners in Psychology to practice psychology in the State of Alabama; that Dr. Sultan had practiced as a psychologist in the State of Alabama, as defined in § 34-26-1(b)(1), Ala.Code 1975, because she had conducted testing in the state and had been named to testify as an expert witness in the case by the defense; and that a person who is not licensed in this state and who holds himself or herself out as a psychologist and practices in this state is guilty of a Class C misdemeanor, as set forth in § 34-26-42, Ala.Code 1975. The next day, the circuit court entered the following order:

"Having considered the arguments presented by Respondent, the Court hereby ORDERS that Dr. Faye E. Sultan shall be required to establish that she is licensed to practice psychology in the State of Alabama before she will be allowed to testify regarding any psychological issues in this matter which were derived from the administering of tests in Alabama or through an interview with Petitioner, who is detained within the borders of the State of Alabama."

(C.R. 941.) The appellant filed a motion to reconsider, which the circuit court summarily denied. Finally, when this issue was raised at the conclusion of the evidentiary hearing on August 22, 2001, the circuit court explained:

"But I'm convinced that if I allow Dr. Sultan to testify in this court that I would — as stated in The State's motion, I would be facilitating the commission of a crime myself. I'm not going to do that."

(R. 142-43.)

Initially, we question whether Dr. Sultan actually violated §§ 34-26-1(b)(1) and 34-26-42, Ala.Code 1975. Section 34-26-1(b)(1), Ala.Code 1975, provides:

"A person practices as a `psychologist' within the meaning of this chapter when he or she holds himself or herself out to be a psychologist or renders to individuals or to the public for remuneration any service involving the application of recognized principles, methods, and procedures of the science and profession of psychology, such as interviewing or administering and interpreting tests of mental abilities, aptitudes, interests, and personality characteristics for such purposes as psychological evaluation or for such purposes as overall personality appraisal or classification, or treatment. The practice of psychologists specifically includes the use of projective assessment techniques, the diagnosis of mental disorders, and psychotherapy."

(Emphasis added.) Because Dr. Sultan evaluated the appellant for his attorneys for use in court proceedings, it is not entirely clear that her actions constituted practicing as a psychologist as defined in this section. Further, § 34-26-42, Ala.Code 1975, provides:

"If any person holds himself or herself out to the public as being engaged in practice as a psychologist or psychological technician, such as clinical, counseling, school, or combined professional-scientific psychology, and does not then possess in full force and virtue a valid license to practice as a psychologist or psychological technician under this chapter, he or she shall be deemed guilty of a Class C misdemeanor and, upon conviction, shall be fined not less than one hundred dollars ($100) nor more than five hundred dollars ($500). Nothing in this chapter shall be construed to limit the professional pursuits of teachers in recognized public and private schools, clergymen, practitioners of medicine, social workers and guidance counselors from full performance of their professional duties. However, in such performance any title shall be in accord with this chapter. Students of psychology, psychological interns, or other persons preparing for the profession of psychology may perform as a part of their training the functions specified in this chapter, but only under qualified supervision. Use of psychological techniques by business and industrial organizations for employment placement, evaluation, promotion, or job adjustment of their own officers or employees or by employment agencies for the evaluation of their own clients prior to recommendations for employment is also specifically allowed. However, no industrial or business firm or corporation may sell or offer to the public or to other firms or corporations for remuneration any psychological services as specified in this chapter unless the services are performed or supervised by individuals duly and appropriately licensed under this chapter."

(Emphasis added.) Because it is not entirely clear from the record that Dr. Sultan held "herself out to the public as being engaged in practice as a psychologist," we question whether she violated this section.

Moreover, the Alabama Court of Civil Appeals has held that the fact that an expert is not licensed to practice his or her specialty in Alabama does not prevent him or her from testifying as an expert witness in Alabama. In Mitchell v. Mitchell, 830 So.2d 755, 757-59 (Ala.Civ.App.2002), the court stated:

"After reviewing the scant record in this case, we conclude that the dispositive issue presented on appeal is whether the trial court improperly denied the expert testimony of Dr. Sher Schwartz, a psychologist licensed in Georgia, because she was not licensed to practice in Alabama. . . .

". . . .

"The question we must answer is whether a psychologist, licensed in another state, may be prohibited from testifying as an expert witness solely on the grounds that she is not licensed in Alabama.

"Rule 702, Ala. R. Evid., provides:

"`If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in

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