Seibold v. State

¶1(dissenting) :

¶2I must respectfully dissent. I feel the defendant was denied his constitutional right to have a hearing to determine his mental competency to stand trial. The principle has long been recognized that an accused should not be tried for an offense if he is, at the time of the trial, insane. In fact, Blackstone in 4 Blackstone’s Commentaries 24, sets out,

“ …

“Also, if a man in his sound memory commits a capital offence, and before arraignment for it, he becomes mad, he ought not to be arraigned for it; because he is not able to plead to it with that advice and caution that he ought. And if, after he has pleaded, the prisoner becomes mad, he shall not be tried; for how he can he make his defence ? … ”

¶3In a note in 81 Harvard L. Rev. 454 (1967) entitled, Incompetency To Stand Trial, the author wrote, “The common law provided, as a matter of fairness and humanity, that a person could not be criminally tried if unable, because of mental or physical disability, to understand the nature of the proceedings against him or to act rationally in his own defense.”

¶4This Court in Ex parte Lee, 248 Ala. 246, 249, 27 So.2d 147, 149, stated:

“Insanity existing at the time of the commission of an alleged criminal offense, when properly pleaded and proven, is a complete defense to an indictment charging that offense. Section 423, Title 15, Code of 1940. But insanity occurring subsequent to the commission of the alleged offense is no answer to an indictment charging that offense, and cannot be made the basis of a plea in bar of the prosecution. Jones v. State, 13 Ala. 153. But this is not to say that the defendant charged with a criminal offense, and who becomes insane after the commission of the alleged offense cannot suspend or postpone the trial of *568his case until his sanity has been restored.” (Emphasis supplied)

¶5Bishop v. United States, 350 U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956) held that conviction of an accused person in a federal court while he is legally incompetent violates due process. In Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815, for the purpose of “resolving the difficult questions of state-federal relations”, the United States Supreme Court made it clear that if a “sufficient doubt” as to the present competency of an accused is made known to the trial court, then the defendant is' constitutionally entitled to a hearing on the issue of his competency to stand trial. In that case the accused before the trial had not requested a hearing on his mental competency to stand trial. However, throughout the trial the counsel for the defendant insisted that Robinson’s present sanity was very much in issue; thus the Supreme Court held that sufficient notice was before the trial court to require it to have had a separate hearing concerning defendant’s competency to stand trial. The two dissenters to that opinion, Justices Harlan and Black, while mainly disagreeing with the majority on the evaluation of the factual issue, expressed themselves in Justice Harlan’s language as follows:

“The Court appears to hold that a defendant’s present incompetence may become sufficiently manifest during a trial that it denies him due process for the trial court to fail to conduct a hearing on that question on its own initiative. I do not dissent from this very general proposition, and I agree also that such an error is not ‘waived’ by failure to raise it and that it may entitle the defendant to a new trial without further proof. … ” Id., at 388, 86 S.Ct. at 843.

¶6It is clear from the dissenting opinion as well as from the majority opinion in that case that all nine of the members of the United States Supreme Court agreed that upon sufficient doubt being raised as to the mental competency of a defendant to stand trial that he is entitled to have a separate hearing to determine whether or not he should stand trial under his present mental condition.

¶7Article 2 of Chapter 21 of Title 15 of the Code of Alabama 1940, deals with the matter of sanity inquisitions and proceedings in regard to those charged with crimes. The two pertinent sections pertaining to the case under review are Sections 425 and 426 of Title 15 of the Code of Alabama 1940. Under Section 425, supra, (the pertinent part of which is quoted in the majority opinion) the hearing is for the purpose of allowing the trial court judge to determine whether or not the defendant should be sent to the Alabama State Hospital for the purpose of getting the Superintendent of the Alabama State Hospital and two members of his medical staff to constitute a commission on lunacy with the view of determining the mental condition of such defendant and the existence of any mental disease or defect which would affect his present criminal responsibility or his criminal responsibility at the time of the commission of the crime. It is clear that this section does not call upon the trial judge to make a determination pertaining to his mental competency to stand trial.

¶8In Lee v. State of Alabama, 386 F.2d 97, 106 (5th Cir. 1967), the United States Court of Appeals for the Fifth Circuit commented on said Section 425 as follows:

“ …

“As has been pointed out above, immediately following Lee’s indictment the appropriate public officials moved under Sec. 425 to have an inquiry into his mental condition ‘and the existence of any mental disease or defect which would affect his present criminal responsibility or his criminal responsibility at the time of the commission of the crime.’ Although this section speaks of the ‘mental condition’ of the accused it seems clearly directed towards the specific inquiry whether an indicted person suffered from any mental disease or defect which *569would affect his present criminal responsibility or his criminal responsibility at the time of the commission of the crime. It is plain that this section does not expressly require any determination by the lunacy commission as to the mental capacity of the accused person, already under indictment in a capital case, to stand trial.”

¶9Thus a hearing under said Section 425 fails to meet the requirements of the hearing to determine the mental competency of a defendant to stand trial as mentioned in Pate v. Robinson, supra.1

¶10Section 426, supra,2 provides for determination by a jury of the present sanity of a person charged with a felony, if he is held in confinement under indictment. A hearing under this section has been held to be a compliance with the requirement of Pate v. Robinson, supra, by the United States Court of Appeals, Fifth Circuit, in the case of Lee v. State of Alabama, supra.

¶11In the instant case, a number of motions pertaining to the mental condition of the defendant were filed. However, all of these motions were filed under said Section 425 with the exception of the “Motion for Inquiry Into Mental Condition of Defendant Before Trial” and a plea in abatement. The said “Motion for Inquiry Into Mental Condition of Defendant Before Trial” and the plea in abatement clearly reflect that the defendant sought a determination of his competency to stand trial by a jury under said Section 426.

¶12In the majority opinion it is stated that a “Second Motion for Investigation of Sanity of Defendant” was filed pursuant to the provisions of Section 426, supra. This is just not a correct statement. Nowhere in said motion does Section 426 appear. The following portion of the prayer of said motion clearly shows that the relief sought was under said Section 425:

“B. That upon the hearing of this motion the Court appoint three reputable specialist practitioners in mental and nervous diseases to examine the said defendant and to make their written report to this Court of his sanity or insanity, or in the alternative that this Honorable *570Court accept the aforesaid three affidavits attached to this motion as the written reports of three reputable specialist practitioners in mental and nervous diseases as called for under the provisions of Section 425, Title 15, Code of Alabama, Recompiled 1958.

“C. That upon the consideration of the aforesaid written reports an order be made and entered by this Honorable Court that the said defendant, Edward Albert Seibold, be delivered by the Sheriff of this County to the Superintendent of the Alabama State Hospitals for the purpose of determining the present mental condition of the said defendant and the making of a report to this Court thereon as called for by the provisions of the aforesaid Section 425, Title 15, Code of Alabama, Recompiled 1958.”

¶13The only ore tenus hearing that the trial judge held in connection with the numerous motions was concerning said “Second Motion for Investigation of Sanity of Defendant”. It is apparent from the statements made by the lower court judge during the hearing that he considered the hearing as being an inquiry pertaining to whether the defendant should have an examination as to his insanity (Section 425). The trial judge, on one occasion during the hearing on said “Second Motion for Investigation of Sanity of Defendant”, stated:

“ … This motion is for the court to read the affidavits, listen to the testimony to determine whether or not this man requires an examination as to his insanity ….”

¶14The majority opinion seems to hold that since a hearing or “hearings” were held by the trial court then such suffices to meet the requirement of Pate v. Robinson, supra. The majority opinion construes a hearing as including a proceeding in which the trial judge considered a motion and the exhibits thereto. In fact, the majority holds that they find no constitutional infirmity in the hearings accorded the defendant on the respective motions filed in the case under review. I cannot agree that any so-called hearing in the case under review complied with the requirement of Pate v. Robinson, supra. All of the motions were specifically made under either Section 425 or Section 426. The plea in abatement sought a jury determination under the provisions of said Section 426. As has been heretofore pointed out a hearing under Section 425 fails to comply with said constitutional requirement. Clearly, no hearing was held under Section 426 because a jury determination was not made as is required by Section 426. At the utmost any so-called hearing could be, solely and only, construed as a hearing to determine if “sufficient doubt” existed as to the mental competency of the defendant to stand trial. No hearing was held to ascertain whether the defendant possessed the necessary and requisite mental competency to stand trial.

¶15The “Motion for Inquiry into Mental Condition of Defendant Before Trial” had attached thereto as exhibits, an affidavit from Dr. Charles E. Herlihy, psychiatrist of Birmingham; an affidavit from another psychiatrist by the name of Dr. Charles H. Smith; and a third affidavit from Dr. Hugh Waldheim, Jr., psychiatrist of Miami, Florida. Said motion also averred under oath that the defendant had been examined by Dr. Ronald Hamby, a practicing clinical psychologist at Jackson Hospital in Montgomery and recited that it was the opinion of the said Dr. Hamby that the defendant was then of unsound mind, psychotic, and paranoid. All of the other motions had the identical affidavit of Dr. Herlihy, as well as further documentary testimony attached thereto as exhibits. The “Second Motion for Investigation of Sanity of Defendant” had as exhibits the identical affidavits of Dr. Smith and Dr. Waldheim, as well as the affidavit of Dr. Herlihy. The court heard the oral testimony of Dr. Howard S. Weldon, a general practitioner and surgeon of Opelika, Alabama. There can be no doubt that considerable expert psychiatric evidence was presented to the trial judge.

¶16*571The affidavit of Dr. Charles E. Herlihy recited that he had examined the defendant on December 26, 1967 (which was less than three weeks prior to the date the trial began) and concluded, after detailing many findings, that he thought Seibold was psychotic (insane in a legal sense) and should be committed to the appropriate mental hospital for further diagnostic procedures. He further stated that the patient was not then capable of competently assisting in the case pending against him and in layman’s language the patient was of unsound mind.

¶17Dr. Charles H. Smith, in his affidavit, set forth his findings and observations in ■detail from an examination on January 3, 1968, and concluded as follows:

“ …

“In my professional opinion the patient is suffering from a schizophrenic reaction. In as much as he is suffering from a psychotic condition, it would be my opinion that he is deserving of a period of observation and treatment at the appropriate state hospital. In my opinion the patient’s present disorganized state of thinking is such that in the event of trial he would not be able to adequately assist in his own defense. In layman’s language, the patient is now of unsound mind.”

¶18The documentary evidence from Dr. Hugo Waldheim, Jr. stated that he had seen the defendant in the Dade County (Florida) Jail on December 9, 1967, for the purpose of making a psychiatric evaluation and from his interview it was his professional opinion that Mr. Seibold demonstrated evidence of a mental illness and was in need of a more extensive evaluation before a definitive diagnosis of his mental illness could be established.

¶19Dr. Howard S. Weldon was called by the defendant. He testified he attended prisoners in Lee County jail; that he had observed Edward Albert Seibold in said jail on two occasions; that he did not give Seibold any psychiatric examination; that it would be impossible for him to say whether he was of sound or unsound mind but that he would recommend that he be placed in an institution to determine whether or not he was suffering from unsound mind.

¶20This was all of the evidence before the trial judge, for the State presented no evidence. No one, not even a layman, testified that the defendant was competent to stand trial, or even expressed an opinion that the defendant was sane. While some of the experts felt that the defendant should be examined further before making their final determination, two psychiatrists stated that the defendant was insane and incapable of competently assisting in the case pending against him. Such testimony, in my opinion, generated “sufficient doubt” as to his mental competency to stand trial, and, therefore, he was entitled to have a determination by a jury of his mental competency under the provisions of said Section 426. A similar factual situation existed in a case cited in Pate v. Robinson, supra, i. e., Thomas v. Cunningham, 313 F.2d 934, C.C.A. 4, where undisputed evidence established a “prima facie” showing that the defendant was incompetent to stand trial. That case held the denial by the trial court of the defendant’s motion for a determination of the defendant’s competency to stand trial was so arbitrary as to constitute a denial of due process.

¶21The trial judge in the case at bar refused and denied the “Motion for Inquiry into Mental Condition of Defendant Before Trial” and struck the plea in abatement, both of which sought a Section 426 jury hearing and determination. Because of such rulings, I would reverse.

¶22It has long been the position of this Court that the decision whether to order a Section 426 hearing is discretionary with the trial judge. Granberry v. State, 184 Ala. 5, 63 So. 975; Whitfield v. State, 236 Ala. 312, 182 So. 42; Burns v. State, 246 Ala. 135, 19 So.2d 450; Ex parte Bush, 247 Ala. 351, 24 So.2d 353. In at least two cases, Rohn v. State, 186 Ala. 5, 65 So. 42, *572and Whitfield v. State, supra, the exercise of discretion in the application of the provisions of Section 426, supra, was held as not being revisable on appeal, citing Gran-berry v. State, supra, in support thereof. While Granberrydoes state that the trial court has a discretion under Section 7178 of the Code of 1907 (predecessor of Section 426) as to granting a motion to execute an inquisition as to a defendant’s mental status at the time of trial, no such restriction therein is found as is stated in Rohn v. State, supra, and Whitfield v. State, supra. In Burns v. State, supra, this Court held that the denial of a hearing under Section 426 was not reviewable on appeal in the absence of abuse of discretion and cited in support of this proposition Granberry, Rohn and Whitfield. Whether the trial court’s denial of such a hearing is reviewable on an abuse of discretion or not revisable at all is in a state of confusion. However, no Alabama case has been found where a trial judge was reversed for denying such a hearing. But, regardless, the impact of Pate v. Robinson, supra, transcends all prior decisions of this Court on this point and, therefore, in my opinion, indirectly overrules all such decisions which may be in conflict with it. If sufficient doubt of the defendant’s present mental competency is raised, then it is mandatory that there be a judicial hearing to determine his mental competency to stand trial. Such a hearing was not held in the instant case and, therefore, in my opinion, Pate v. Robinson, supra, requires that it be reversed.

¶23I would also reverse for another reason. In the main trial, after Dr. Herlihy testified that the defendant had admitted to him the facts of the crime, the attorney for defendant asked Dr. Herlihy two questions, to which the trial court sustained the State’s objections — reciting that in each instance the question was for the jury.

¶24These two questions were:

“Q. Doctor, do you have an opinion as to whether the acts which he has related to you and for which he is on trial here were the result of a mental illness which this man was suffering from in September of 1967?

“Q. Doctor, in your opinion, based upon the events related to you by Eddie Seibold, do you have a judgment as to whether or not the acts of violence for which he is now on trial were the sole proximate result of the mental illness that he is now suffering from and that he was suffering from in September of 1967?”

¶25In the majority opinion of this Court, it was held that the trial judge correctly sustained the objections as such questions called for answers which were invasive of the province of the jury. It was apparent that the defense counsel sought to frame these questions within the context of Parsons v. State, 81 Ala. 577, 2 So. 854. The majority of this Court rely on Boyle v. State, 229 Ala. 212, 154 So. 575. However, I do not feel that Boyle v. State, supra, is authority for withholding expert opinion testimony from the jury’s consideration. The majority opinion quotes from that case, and the portion thereof that it emphasizes is as follows: “ … In such case, it- is for the jury to say whether such disease was the sole cause of the deed.” However, this actually is in reference to the propriety of the trial judge’s refusal to give the affirmative charge in favor of the defendant and does not pertain to an evidentiary ruling. I do not consider that said quoted portion or anything in the Boyle case as apropos to the said issue now under review. Indeed, a careful reading of Boylediscloses that psychiatrists who testified at that trial stated that in their opinion the defendant was insane, and that either he did not know the difference between right or wrong, or if he knew the difference, he was unable to prevent doing the act.

¶26An expert’s opinion upon an ultimate fact is not inadmissible on that account. *573McElroy, The Law of Evidence in Alabama (2nd Edition) Vol. 1, Section 127.01 (4), Page 306. Opinion testimony of experts on subjects appropriate for expert testimony is admissible, even if it is in practical affirmation of a material issue in the case. Watson v. Hardaway-Covington Cotton Co., 223 Ala. 443, 137 So. 33. It is permissible for an expert to testify as an expert on matters which are within the issues to be determined by the jury, provided such matters are not of common knowledge. Colvin v. State, 247 Ala. 55, 22 So.2d 548; Elkins v. State, 250 Ala. 672, 35 So.2d 693. In Birmingham Electric Co. v. Farmer, 251 Ala. 148, 151, 36 So.2d 343, this principle is stated as follows:

“ ‘Opinion evidence of experts, such as physicians, may be based upon facts of which the witness has actual knowledge, as well as upon abstract hypothesis.’ Louisville & N. R. R. Co. v. Stewart, 128 Ala. 313, 29 So. 562, 568. Since he was an expert, there was nothing in his testimony or the question put to him which invaded the province of the jury. Colvin v. State, 247 Ala. 55, 22 So.2d 548; Watson v. Hardaway-Covington Cotton Co., 223 Ala. 443, 137 So. 33.” (Emphasis supplied)

¶27See also Brandon v. Progress Distilling Co., 167 Ala. 365, 52 So. 640.

¶28These holdings of this Court are in keeping with the modern trend. See 2 Underhill’s Criminal Evidence, Section 307, 1970 Pocket Part, page 9, where the following appears:

“There seems to be a modern tendency, however, to permit experts to give their opinions upon ultimate issues whose final determination rests with the jury.”

¶29In Hall v. State, 248 Ala. 33, 26 So.2d 566, this Court held that it was error not to allow an expert’s testimony concerning whether the mind of the accused was so defective as to destroy his power to choose between right and wrong and whether his free agency was destroyed to such an extent that he was incapable of avoiding the commission of the act charged at the time thereof.3 This, of course, is an element of Parsons v. State, supra. Hall v. State, supra, lists the elements of the defense of not guilty by reason of insanity in the following language:

“We prefer to adhere to the rule announced in the Parsons case, Parsons v. State, 81 Ala. 577, 2 So. 854, 60 Am. Rep. 193, recently re-affirmed in Reedy v. State, 246 Ala. 363, 20 So.2d 528, which requires in insanity cases that the proof should show, that at the time of the commission of the crime the defendant was afflicted with a diseased mind to the extent: (1) He did not know right from wrong as applied to the particular act in question, or (2) if he did have such knowledge, he nevertheless, by reason of the duress of such mental disease had so far lost the power to select the right and to avoid doing the act in question as that his free agency was at the time destroyed, and (3) that, at the same time, the crime was so connected with such mental disease, in the relation of cause and effect, as to have been the product of it solely.” (Emphasis supplied)

¶30In the case under review the questions were directed toward an element of the defense of not guilty by reason of insanity, that being, “the crime was so connected with such mental disease, in relation of cause and effect, as to have been the product of it solely.” Since this Court reversed in Hall v. State, supra, for the refusal to allow an expert to testify about one element of the defense of insanity, I can see no reason to apply a different rule to another such element. Thus, in my opinion, the trial judge committed reversi*574ble error in sustaining the State’s objections to these questions.

¶31Because of the reasons herein discussed, I must respectfully dissent.