# Petition — Magwood v. Alabama > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1408%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1983 - **Citation:** 462 U.S. 1124 ## Text 5 . F Z-es eo IN THE SUPREME COURT OF THE UNITED STATES TERM 1983 eeeeeeeneenanne RECEIVED BILLY JOE MAGWOOD, APR . . 55 a THE CLERK PETITIONER, — COUNT, U.S. V. EE | enh én gry t * DEFENDANT , APR 12 84 e*ee@e”e@ee#eeee#eee#e#et#eeé Ale~rvder l. Stoves, Clerk | PETITION FOR A WRIT OF CERTICRARI TO THE SUPREME COURT OF STATE OF ALABAMA The petitioner, Billy Joe Magwood, prays that a writ of Certiorari issue to review the opinion and judgment of the Supreme Court of Alabama rendered in these proceedings on January 7, 1983. OPINIONS BELOW The opinion of the Supreme Court of Alabama, is yet unreported, appears at Appendix A, p. .. The opinion of the Court of Criminal Appeals of Alabama is unreported, but appears at Appendix A, p. 25 , and, the opinion of the Circuit Court of Coffee County is unreported, but appears at Appendix A, p. 42 . JURISDICTION The judgment of the Supreme Court of Alabama was entered January 7, 1983. Petitioner applied for a rehearing on January 21, 1933 and same was denied on February 11, 1983. This petition for certiorari ~ was filed less than ninety (90) days from the date petitioner's 1 petition for rehearing was denied. The jurisdiction of this Court is invoked under 28 U.S. C. §1257(3). STATEMENT OF FACTS The alleged facts presented at a trial of this matter shows that Billy Joe Magwood shot and killed Sheriff Neil Grantham, within a few weeks of his release from a State prison facility where he was serving a four year term for possession and distribution of a controlled substance. Billy Joe Magwood came up for parole in October 1978 before the Parole Board but was denied on the basis that “His release would not be compatible with the welfare and protection of society." Prior to his release, Magwood's probation was revoked on the possession and distribution charge after he was charged with assault and battery and threatening his probation officer. The record shows that Magwood pulled up in front of the Coffee County jail on March 1, 1979 between 6:00 A.M. and 6:30 A.M. He parked the automobile he drove in the parking space alloted for the sheriff. Sheriff Neil Grantham arrived between 6:30 A.M. and 6:45 A.M. He parked his car across the street from the jail, went to a trash can and deposited a trash bag therein, came back across the street behind the parked car of Billy Joe Magwood. Magwood got out of his car, walked to the rear of the car and shot the sheriff three times. Sheriff Niel Grantham fell to the ground. Tom Weeks, a deputy sheriff was an eye witness to the shooting. Weeks was standing in the doorway of the jail looking out of the windows. After hearing the shots and seeing Sheriff Grantham fall, Weeks went to a desk draw, retrieved a pistol and attempted to apprehend Magwood. Magwood fired at least two shots at deputy Weeks, got in the automobile in which he arrived and drove off. A short time thereafter, City, County and State officers arrested Billy Joe Magwood after locating him sitting on the back porch of his mother's house. The car he drove to the jail, a faded blue Chevrolet, was parked out front. STATEMENT OF THE CASE On March 1, 1979, Billy Joe Magwood was arrested for the murder of Sheriff Neil Grantham of Coffee County. On March 12, 1979, Billy Joe Magwood was indicted for murder. On May 5, 1981, Billy Joe Magwood was arraigned and pleaded guilty by reason of insanity and not guilty. On June 1, 1981, the case came to trial. On June 2, 1981, Billy Joe Magwood was found guilty. On June 20, 1981, Billy Joe Magwood was sentenced to death by electrocution to occur August 4, 1981. On July 20, 1981, a motion for new trial was filed and denied on September 16, 1981. Notice cf appeal was filed September 24, 1981. On February 16, 1982, the case was submitted to the Court of Criminal Appeals. On April 5, 1981 oral argument was waived and the case was submitted on briefs. On May 18, 1982, the Court of Criminal Appeals affirmed the trial Court's decision. oa May 28, 1982, application for rehearing was filed in the Court of Criminal appeals. | The application for rehearing was denied on June 8, 1982. Writ of Certiorari and accompanying brief filed on June 22, 10922. | On August 19, 1982, Petition for Writ of Certiorari was granted. On January 7, 1983, State Supreme Court rendered its decision affirming the Court of Criminal Appeals. On January 21, 1983, Application for Rehearing was filed. On February 11, 1983, application was denied. et I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN PAILING TO GRANT PETITIONER'S MOTION FOR CHANGE OF VENUE? II. WHETHER THE TRIAL COURT ABUSED es DISCRETION IN SUBMITTING THIS CASE TO THE JURY IN THE FACE OF OVERWHELMING EVIDENCE INTRODUCED BY DEFENDANT TO REBUT THE PRESUMPTION OF SANITY? III. WHETHER THE COURT ABUSED ITS DISCRETION BY DENYING PETITIONER'S REQUEST TO HIRE A PSYCHIATRIST AFTER THE STATE SECURED THE OPINION OF AN ADDITIONAL PSYCHOLOGIST? IV. WHETHER THE DEATH STATUTE UNDER WHICH DEFENDANT WAS TRIED AND CONVICTED IS CONSTITUTIONAL? I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING PETITIONER'S ION FOR CHANGE OF VENUE? We realize that a motion for change of venue is within the sound discretion of the trial court, and absent a showing of abuse of that discretion, its ruling will not be disturbed. Those words are supported by a linc of cases, Speigner v. State, 367 80. 2d 590; Coan v. State, 380 So.24 980; Dolvin v. State, 391 80. 2d 666. And, on its face those words seem fair and logical, but how does one gage a judge's discretion? Is the fact that every television station, radio station and newspaper in the area and surrounding area reported the fact that Billy Joe Magwood shot and killed Sheriff Neil Grantham sufficient to warrant an abuse of discretion? Is the fact that periodically for a period of nearly two years, these same news services diligently reported the incident to the public without also reporting that petitioner Magwood was innocent until proven guilty, dispositive of the issue? Is it the judge's duty to take these circumstances into consideration and how perpetual reporting, that a black ex-convict shot and killed the local sheriff is likely to effect potential jurors? Should the fact that petitioner Magwood could not be housed in a Coffee County jail for nearly two years after the killing for fear of his safety be considered by the trial judge in deciding venue? We think so. The record of this trial is filled with news reports of the killing. The sensationalism, surrounding this trial mixed with the traditional racial overtones present when a black kills a white, not to mention @ black (ex-convict) killing the local sheriff. The courtroom was packed with friends of the sheriff. Extra precaution had to be taken for security throughout the trial. Certainly, to hold 6 — . — wee — - petitioner's trial in the midst of this atmosphere was an abuse of the judges discretion. In makihg the claim of abuse of discretion, we do not overlook Irvin v. Dowd, 366 U.S. 717, 81 8. Ct. 1639, 6 L.Ed. 24. 751, but state that the highly pressured conditions under which this trial was held in a small rural Alabama county where virtually everyone knows everyone else distinguished Irvin v. Dowd, supra, and makes the jurors assurances that they can place aside their biases more than suspect, but critical. Murphy v. Florida, 421 u. &. 794, 95 8. Ct. 2031, 44 L.Ed. 2d 589. A change of venue would have remedied the situation and removed any and 211 doubt, especially since petitioner's life hangs in the balance. 11. 0 TRIAL COURT ABUSED ITS DISCRETION IN SUBMITTING | HE PACE RWHE (ODUCED BY DEFENDANT TO REBUT THE PRESUMPTION OF SANITY? Defendant in this case presented the defense of not guilty and not guilty by insanity. By presenting said plea, defendant had the burden of rebutting the presumption of sanity. Herbert wv. State, 357 80. 24. 683 (Ala. CR. App.). Billy Joe Magwood, defendant, is charged with the murder of Sheriff Neil Grantham of Coffee County on March 1, 1979. Apprehended within hours after shooting the sheriff, defendant, Billy Joe Magwood was transferred to a neighboring county for safety. In the mean time his trial counsel requested that Magwood be tested in order to determine his sanity. On May 31, 1979, the Court appointed two local general practitioners, Dr. Donald Crook and Dr. Bancroft Cooper to examine the defendant. After fifteen to thirty minutes of examination on two separate occasions each doctor stated that Gefendant was sane (T-236 & 272). However, both doctors on cross examination stated that they knew nothing of defendant's prior medical or mental history. Each Goctor refused to rate their cursory diagnosis superior to the Giagnosis of the Lunacy Commission appointed later (T-238, T-275). Defendant's counsel not being satisfied with the results of the examinations given his client by the two general practitioners requested a covening of a Commission on Lunacy in order to determine Gefendant's mental responsibility under Article 22, Chapter 16, Title 15, Code of Alabama. Said Lunacy Commission was duly provided in accordance with Title 15-16-22 Code of Alabama. Billy Joe Magwood was transferred to the custody of the Supreintendent of Searcy Hospital, Mt. Vernon, Alabama for observation (T-383). J. E. Kimbrough, M. b., Assistant Superintendant, Clinical Services, William H. Rudden, M. D., Staff Psychiatrist, and A. Ronald Walker, M. D., Staff Psychiatrist were appointed to constitute the commission. There is no need to quote from their report here. It is part of the record located at T. 384 to 386. The report speaks for itself. After hours and hours of examination and evaluation the commission individually and jointly found defendant Magwood to be presently insane and incompetent on the day said crime was committed. This report was submitted to the Clerk of the Coffee County Court on August 16, 1979. These doctors only a few months after the alleged commission of this crime by Magwood found him to be totally crazy. The precise psychiatric examination are located at T. 355 to 567. Through the reports, defendant Magwood is listed as @ schizophrenia, paranoid type, violent, with capabilities of "acting out” his fantasies. At trial of this matter, attorney for defendant, Magwood, called Dr. William Rudder, one of the participants on the Lunacy Commission who was not present but h i s deposition was read into the record, repeated over and over that defendant Magwood was out of touch with reality, had a diseased mind, and that defendant was incapable of distinguishing between right and wrong (T. 199). The record further reflects defendant had a history of drug abuse, utilizing such drugs as LSD, cocaine, heroine, opium, gualudes, valium and marijuana (T.557). Treatment while under the custody of the Lunacy Commission included loxitane, novane, taractan and lellurial. All are potent drugs to treat psychosis (T. 245). Dr. Rudder further stated that defendant Billy Joe Magwood's mental illness is severe, so severe that he would be diagnosed insance in any part of the world. In response to the prosecution's question “People who have schizophrenia and people who have schizophrenia paranoid type, they don't behave all alike in all respect, do they? "Out of a given number of people, let's take a hundred, for example, who are suspected of having schizophrenia, there will be upwards to fifty to seventy-five percent of those that anybody would say has schizophrenia. There will be ten or fiften of twenty percent, depending on the part of the world you're in, that there would be--some le would say were perfectly all right. There will be some borderline people which would lead you to believe, if you write up the statistics on these borderline people, that we don't know what we're talking about and we can't decide who's crazy and who ain't crazy, just in street terms. How, I want to go ahead. Billy Joe Magwood falls into the category that would be called cracy in Stockholm; he would be called crzay in Calcutta, in Tokyo, any place. He is schizophrenic. He is not in the borderline category.” Prior to his trial on June 2, 1981, defendant was required by the State to submit to examination by Dr. Douglas McKeown, a licensed clinical psychologist. Between April 23 and April 27, 1981, at the Houston County Jail in Dothan, Dr. McKeown, examined Gefendant from eight to ten hours. It was Dr. McKeown's opinion that defendant was sane and knew the difference between right and wrong on March 1, 1979, the date of the shooting. Dr. McKeown readily admitted that he never examined or observed defendant at any time when defendant was not taking his proper medication. In order to rebut the presumption of senity, one's evidence must be overwhelming, Boyle v. State, 229 Ala. 212, 154, So. 575; Christian v. State, 351 So.24 623; Noris v. State, 401 So.24 191. Both general practitioners who examined defendant only a few days after the shooting refused to state that he was sane. One docter deferred to the expertise and cpinion of the Lunacy Commission, and the other stated that in his opinion defendant was sane but suffered from the mental disorder paranoid schizophrenia, the same condition upon which the Lunacy Commission found defendant to be insane and incompetent to stand trial. The Lunacy Commission's report speaks for itself. Furthermore, it was an extensive report made within three months after the incident. That commission's report found defendant insane presently and insane on the date the crime was committed. The only other test administered to defendant regarding his competency to stand trial and his competency on the day the crime occurred over two years later after extensive medical treatment. The clinical psychologist who made the report, Douglas McKeown, stated that he had never examined the defendant when the defendant was not on medication. 10 5 N 7 ig ‘ \ vy i a tee . * * — 1 2 ty ret | 0 ‘ ‘ ~ 3 1 ou ni SAAT . * 25 in e nk 2 oe ao . * ee 1 ala i 1 . — 62 This Honorable Court need not be reminded that defendant had been in jail and on no medication when the first two general practitioners saw him e few days after the shooting. Their examination was simply inadequate and they were not qualified in the field of mental disorders to render such an opinion. This Court need not be reminded that the Lunacy Commission was composed of three very qualified psychiatrists who overwhelmingly pronounded defendant insane. Finally, this court need not be reminded that Dr. McKeown's opinion was based upon his examination of a completely different Billy Jo» Magwood, some two years after the incident and some two years of extensive medical treatment. * We think here, that if this Court apply the principles of law which are outlines in Christian v. State, supra, and its progeny to the facts in this case, this Court will find that overwhelming and uncontradicted evidence was present and sufficient to rebut the presumption of sanity. The State hired Dr. Dorald Crook and Dr. Bancroft Cooper to examine defendant in order to determine his sanity on May 31, 1979. Defendant had no choice in the selection of said doctors. Both doctors returned a finding that defendant was sane. These examinations took place in the jail for a period of twenty to thirty minutes each. On the 20th day of June 1979, the State convened @ Lunacy Commission which conducted extensive examinations of defendant and found him to be insane presently and insane at the tim the 11 * — “- - R —mU— ati + offense was committed. Being unsatisfied with the result of the Lunacy Commission, the State went even further to employ the assistance of Dr. Douglas McKeown, a clinical psychologist, in order to have defendant examined two years after the alleged offense occurred. Dr. McKeown stated that it was his professional opinion that defendant was sane. Defendant's counsel filed a motion on June 26, 1980 in order to secure the services of a consultant psychologist to assist in his defense. Said motion was denied. Because he is indigent and unable to secure the services of a consultant psychiatrist, defendant had to proceed to trial unassisted 2 the State with its limitless funds did so hire a psychologist to assist in the prosecution of defendant. Such conduct by the State violates defendant's Constitutional right to equal protection under the 1% of both the State and Federal Constitution. Herein lies the crux of petitioner's claim of unequal protection. The State sought and secured the services of a clinical psychologist over two years after the shooting and after petitioner had been treated extensively with drugs. In fact, the State requested its hand picked clinical psychologist to examine what amounts to a Gifferent individual. The State's action in securing an examination of petitioner by Dr. Douglas McKeown, circumvents the mandate of Code of Alabama, 15-16-22 by, in fact, utilizing Dr. McKeown's testimony as the testimony of a second Lunacy Commission. Surely, the State would not have sought such additional testimony had the Lunacy Commission found petitioner sane. 12 The effects of Dr. McKeown's testimony had tremendous effects with the jurors since the testimony of both doctors who examined petitioner was favorable with one doctor deferring his opinion to that of the Lunacy Commission and the other doctor admitting that petitioner suffered from paranoid schizophrenia. The Lunacy Commission itself stated that petitioner was insane. Therefore, Dr. McKeown's testimony was the duciding material proof. Especially, since Dr. Rudder of the Lunacy Commission was not present and only his testimony was read. Because petitioner was indigent and unable to secure the services of a clinical psychologist or psychiatrist, he was forced to proceed to trial unassisted whereas the State with the limitless funds Aid so hire a psychologist to assist in the prosecution of defendant. Such conduct by the State violates defendant's Constitutional rights to egual protection under the law of both the State and Federal Constitution. Although Harris v. State, 352 80. 2d 479, and Johnson v. State, 355 80. 2d 663, hold: It has been repeatedly held that a denial of funds to pay defense experts for investigations and Geprivation of Constitutions! rights. We think the present case is distinguishable. Petitioner did not request funds to hire an expert initially. Only after the State waited two years, and only after extensive medical treatment with drugs, only after the State sought a re-evaluation of petitioner which tended to state what his mental condition was two years prior without medication, did petitioner seek additional funds to secure the services of an expert. These circumstances distinguishes the 13 the posture of petitioner's case from other cases cited. Petitioner should have been allowed funds to secure a psychologist or psychiatrist cc the State, pursuant to the previously cited statute, should have convened a second Lunacy Commission to order an opinion on petitioner. Taking into consideration that petitioner had beer on extensive medical treatment for two years since the incident. IV. ETHER ' 7 N RIE D AND CONVICTE 5 1s CONSTY’ i259: PUTIONA Petitioner committed the alleged crime for which he has been tried and convicted under Alabama's Criminal Law Punishment Statute, 13-ll-1 et. seq., which the ted States Supreme Court found to be patently unconstitutional as a whole. Beck v. State, 100 8. Ct. 2382, 447 u. &. 625, 65 L. Bd. 24. 392. On remand the State Court of Alabama sought to resurrect the unconstitutional parts of the Statute by severing the constitutionally infirm clauses which precluded the judge from giving an instruction on lesser indicted offenses on a capital case and which provided that a jury had to fix punishment at death if a defendant was found guilty of e capital offense. Beck V. State, 396 80. 24 645. However, Petitioner contend that the foundation of any s0o- called new death statute must come from the Alabama Legislature and not through reformulatory constructions of the Court. Petitioner states that his conviction under any state scheme originating from 13-11-1 et. seq. is unconstitutional and in violation of his Six, Eight and Fourteenth Amendment constitutional rights. . 1 „ W CONCLUSION Petitioner requests this Honorable Court to grant a Writ of Certiorari and review, reverse and remand his conviction on the grounds that his constitutional rights under the Sixth, Eighth and Fourteenth Amendment have been violated. Respectfully submitted, CHESTNUT, SANDERS, SANDERS Pos T Office Box 1305 „ Alabama 36702-130 RTIFICATE OF This is to certify that I have served counsel for the opposing party with a copy of the within and foregoing Petition by depositing a copy of the same in the U. 8. Mail, properly addressed with postage prepaid. This tne £74 aay of 9 19 3. * 2 iG TABLE OF CONTENTS P. No * OPINIONS ELI UU CERTIFICATE or sI. . 15 ew 0 2 2 TABLE OF A pen. nn gi 25333600 enen, e YI i s et. 16555 1. Bas 26. 7511 e. ct. 2031 47 1. Ba. 4 , 0%ç CODE OF ALABAMA, Title 15-16-22 CODE OF ALABAMA, Article 22, Chapter 16, Title 15 PAGE NO. 14 10 10 13 13 10 n TELEPHONE 032-6400 Agpod'y . CLERK OF THE SUPREME COURT t STATE OF ALABAMA 1 D 1 REGEIMED February 11, 1983 ron 1983 chestnut, Sanders N ! Re: 61-792 : : J Arg 183 por lr OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (Re: Billy Joe Magvood ve. State of Alabama) Appellant Appellee You are hereby notified that the following indicated action was taken in the above cause by the Supreme Court Appeal docketed. Future correspondence should refer to the above number. . Reporter granted additional time to [ile reporter transcript to and including — Clerk/Register granted additional time to file clerk's record/record on appeal to and including Appell Appellant) granted 7 additional days to file reply briefs to and including -—— ee Record on Appeal filed — Appendix Filed . Submitted on Briefs | ———— Petition for Writ of Certiorari denied. No opinion. / DR Application for rehearing overruled. No opinion written on rehearing. / | | granted 7 additional days to file briefs to and including Permission to file amicus curiae briefs granted N ve 9 RECEIMED f x ay MAF 1 6 1983 March 14, 1983 Chestnut, Sandus & Gc THE STATE OF Mu u - - - - - - = = 4 gupIciAL vepaRmenT } IN ‘TIE SUPREME COURT OF ALABAMA OCTOBER TERM, 1982-83 81-792 EX PARTE BILY JOE MAGWOOD PETITION POR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Billy Joe Magwood v. State of Alabama) ORDER Billy Joe Magwood having filed in this Court his motion for stay setting an execution date wherein he states that he intends to file a petition for writ of certiorari to the Supreme Court of the United States and seeks a stay of judgment pending disposition of the petition of writ of certiorari in the Supreme Court of the United States, and said petition for stay having been duly submitted and examined by the Court, IT IS, THEREFORE, ORDERED that the judgment be, and the same is hereby, stayed for a period of sixty (60) days from February 11, 1983. IT IS FURTHER ORDERED that Billy Joe Magwood, or his attorney, shall file in this Court a copy of the petition for certiorari filed in the United States Supreme Court and that unless a copy of such petition for certiorari is filed in this Court within sixty (60) days from February 11, 1983, the stay herein ordered shall automatically terminate. IT IS FURTHER ORDERED that if Billy Joe Magwood, or his attorney, files in = Court within sixty (60) days from February 11, 1983, a copy of the petition Torbert, C. J., and Maddox, Faulkner, Jones, Shores, and Beatty, JJ., concur. Alon, Embry, and Adams, JJ., not sitting. Witnes« my hand this LY dayot HAI 4 a oe | 2 L uu. 8 AUGUST 19, 1982 HE STATE OF ALABAMA - ~ = ~ ~- - - = - = = ~ ~ = JUDICIAL enen >, IN THE SUPREME COURT OF ALABAMA W a ' 81-792 Ex Parte: Billy Joe Magvood PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (Re: Billy Joe Magwood vs. State of Alabama) Upon a preliminary examination of the petition in the above cause, the Court concludes there is a probability of merit in the petition and has today granted the writ. IT IS, THEREFORE, ORDERED that the writ issue to the Court of Criminae) Appeals and that this cause stand ready for submission on briefs or oral argument, if so desired, in accordance with Rule 39, Alabama Rules of Appellate Procedure. PER CURIAM. TORBERT, C.J., JONES, SHORES, BEATTY AND ADAMS, JJ., CONCUR. 7 pee 6 . & en THE STATE OF ALABAMA - - - = = ~- JUDICIAL DEPARTMENT THE SUPREME COURT OF ALABAMA OCTOBER TERM, 1982-83 4 Ex parte: Billy Joe Magwood ee PETITION FOR WRIT OF CERTIORARI TO . THE COURT OF CRIMINAL APPEALS (Re: Billy Joe Magwood 61-792 v. State of Alabama) TORBERT, CHIEF JUSTICE. On March 1, 1979, Billy Joe Magwood, the petitioner, en and killed Coffee County Sheriff Neil Grantham. After ced „eee ner was declared an indigent and counsel was nv 3 b 81-792 not guilty by reason of insanity. On motion of petitioner's counsel, an investigation was instituted concerning the sanity of the petitioner. He was interviewed by two local physicians who testified at trial concerning his sanity. Subsequently, he was transferred to Searcy Hospital for observation and evaluation by a three-member lunacy commission. Following that evaluation, he was also interviewed by Dr. Doug McKeown, a clinical psychologist. At trial, the defense read into evidence the deposition of Dr. William Rudder, a member of the lunacy commission, who had observed the petitioner for 8 to 10 hours over a 10- month period beginning in July 1979. Dr. Rudder stated that Magwood was a paranoid schizophrenic and in his opinion did not know right from wrong at the time of the offense. The defense offered no further evidence on the issue of insanity. The state offered the testimony of Dr. Donald Crook, a local physician, who had known the petitioner for 12 years and who had examined him on June 6, 1979, for 30 minutes in preparation for this trial. Dr. Crook testified that petitioner exhibited no signs of schizophrenia. The state also offered the testimony of Dr. Bancroft Cooper, another local physician, who also examined the petitioner on June 6, 1979, for twenty minutes in preparation for this trial. Dr. Cooper indicated that, in his opinion, the petitioner was not insane at the time he examined hin. The evaluations of petitioner's mental condition by the State's witnesses took place in June 1979; the evaluation by the lunacy commission presented by the petitioner took place from July 1979 through April 1980. The case did not come to trial until June of 1981, approximately two years after the 17 initial evaluations were made. In April of 1980, Magwood was removed from Searcy Hospital to the Coffee County jail. * ‘ Ay. @ N —v—— ñ , . .. —— 2 —— | 1 The defense on June 26, 1980, made a motion to the court for funds to hire a psychiatrist or psychologist of the petitioner's own choosing to evaluate his sanity; that motion was denied. On April 21, 1981, the court granted a motion by the State to have the defendant examined by Dr. Doug McKeown. Dr. McKeown testified at trial that, in his opinion, the petitioner knew the difference between right and wrong on the day Sheriff Crantham was killed. The defendant was found guilty of the capital offense of murder. The jury recommended the death sentence; the trial court, after weighing any aggravating and mitigating circumstances, sentenced the petitioner to death. The Court of Criminal Appeals affirmed the conviction. The case is before this Court on a petition for writ of certiorari, which is granted as a matter of right in cases which impose the death penalty. The petitioner raises several points of error for our — consideration. a e asserts that it was error for the trial ne to deny his motion for change of venue based on prejudicial pre-trial publicity. Absent a showing of abuse of discretion, the ruling of the trial court on a motion for change of venue will not be Gisturbed. Speigner v. State, 367 So. 2d 590 (Ala. Crim. App. 1978), cert. denied, 367 So. 2¢ 597 (Ala. 1979). The defendant has the burden of showing that he will be unable to receive an impartial trial and an unbiased verdict at the present locale. Speigner, supra. Absent a showing of actual prejudicial influence upon the jury, the trial court was not in error in refusing to grant a motion for change of venue. Dolvin v. State, 391 So. 2d 666 (Ala. Crim. App. 1979), aff'd, 391 So. 24 677 (Ala. 1980). The petitioner rests his assertion of bias on his impressions of public feeling at the time of the trial. La 81-792 Petitioner states in his brief, "Defendant's proof of such prejudicial influence was only displayed by the jury's verdict regarding his sanity." (Emphasis added.) Petitioner appears to contend that because the jurors found him to be sane they must have been prejudiced against hin. This circuitous reasoning does not constitute a showing of actual prejudice as required by the case law. Our review of the voir dire examination of the jurors reveals no indication of possible bias. We agree with the Court of Criminal Appeals that the publicity surrounding the crime was strictly factual in nature and was not designed to inflame the community. Further, the trial took place two years after the crime. Even if we considered the publicity prejudicial, clearly the passage of time would diminish any prejudicial effect of the media coverage. See, Speigner, supra. Thus, the Court of Criminal Appeals did not err in holding that the denial of petitioner's motion for change of venue was not in error. — The ogra point of error raised by petitioner is that the lower tourt erred in submitting the case to the jury in light of the “overwhelming and uncontradicted” evidence introduced by defendant to rebut the presumption of sanity. This issue was addressed by this Court in Christian v. State, 351 So. 2d 623 (Ala. 1977), wherein the Court established guidelines on the insanity defense. The Court reaffirmed the principle that the defendant is presumed sane and that the defendant has the burden of proof on the issue of insanity. The defendant must establish insanity by a preponderance of the evidence and the question is to be determined by the jury, except in cases where the evidence is “overwhelming and uncontradicted." Christian v. State, 351 So. 2d at 624. See also, Lee vy. State, 246 Ala. 343, 20 * 85. 2 %% (1985). ‘ 20 the case before us, the question of insanity was o 6 0 ' U ie. ‘ ¢ 05 , ’ a 0 ¥ wi is tee 2 ( ! ATT, Pt 81-792 submitted to the jury, based upon conflicting testimony given by @ series of four expert witnesses. Dr. Crook and Dr. Cooper, both practicing physicians, testified for the State that at the time of their examinations of the defendant in June of 1979 he was sane. Dr. Doug McKeown, & clinical psychologist who examined the petitioner in April of 1981, testified that in his opinion the defendant knew the difference between right and wrong on the day Sheriff Grantham was killed. Finally, the deposition of Dr. Rudder, a psychiatrist, was read at trial. In Dr. Rudder's opinion, Magwood was insane at the time of the killing. We cannot say that the evidence in this case was overwhelming and uncontradicted on the issue of petitioner's claim of insanity. The trial court was not in error in submitting the question to the jury. The third point of error raised by petitioner is that it was Neroper for the court to deny his request to hire a psychiatrist or psychologist of his own choosing. We hold that the claim is without merit, since we agree with the reasoning of the Court of Criminal Appeals and its conclusion that "The trial judge's actions appropriately protected appellant's rights in this regard.” Magwood „ State, (Ms. May 16, 1982) 30. % __ (Ala. Crim. App. 1982). Finally, petitioner argues that the lower court did not properly weigh the aggravating and mitigating circumstances prior to imposing the death penalty. Our review of the record indicates that the court considered the capacity of the defendant, the circumstances surrounding the murder, the prior criminal activity of the defendant, his age at the time of the offense and his omotional state at the time of * the offense. We hold that the trial court properly considered any aggravating and mitigating circumstances prior to imposing the death ponalty. . The judgment of the Court of Criminal Appeals is affirmed. . My)’ NOP as f age 10 * N ' | ' AFFIRMED. All Justices concur. ‘ . Bare try F. nen, Gs Acting Clerk ai he Sur „ Fe ese. do hereby eerily tie „teen, „ lull, Gee cre! cycrent dete GET Fite or eo eb iit: ont wal as 0 e eden Sich ae 1 Wits ” * * " 7 1 : it * 7 2 Tywssed. Acting Cie th. Supremo Coum of Alabama of yeaa Mus? , —* ; re 7 2 . 14 lui fe 7. “urs Ue N fy 18 1982 * las 13 7142255695 „ 1 8 ee 1 * Tu. STATE OF ALABAMA - JUDICIAL DEPARTMENT THE ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 1961-82 4 Div. 935 Billy Joe Magwood Vv. State Appeal from Coffee Circuit Court BARRON, JUDGE Appellant was convicted under § 13-1l-2(a) (5), Code 1975, for the murder of Coffee County Sheriff Neil Grantham. After a separate sentence hearing on aggravating and miti- gating circumstances, the jury fixed the punishment at death. Subsequently, the trial court weighed the aggravating and miti- gating circumstances pursuant to § 13-11-3 and § 13-11-4, Code 1975, end sentenced appellant to death. The court issued . 1 e 8 * 0 5 N NK aot * i yee Ke atl sie! ’ * written findings of fact which set forth the aggravating circum- stances the court found sufficient to support the sentence of death. Thomas Weeks, a Coffee County Deputy Sheriff, testified he was employed as the county jailer on March 1, 1979, under Coffee County Sheriff Neil Grantham. The witness stated he observed appellant, whom he recognized as a former jail inmate, sitting in a car parked in Sheriff Grantham's parking space at approximately 6:45 a.m. Shortly before 7:00 a.m., he observed Sheriff Grantham drive up and park his vehicle. He got out of the automobile, walked to some garbage cans and deposited a trash bag, and then walked towards the jail door. Appellant got out of his automobile with something in his hand and met Sheriff Grantham at the rear of the car. At that point, Deputy Weeks heard three gunshots and saw Sheriff Grantham fall. The witness then turned back into the jail and obtained a gun. He observed appellant get back into his car and saw that he held a pistol in his hand. He exchanged fire with appellant as he drove away. Deputy Weeks then went over to where Sheriff Grantham lay on the ground and observed that the Sheriff's face was blue and that he appeared not to be breathing, having apparently been hit in the face and neck. Deputy Weeks stated he observed no one else in the area at the time the Sheriff was killed. William Hurd testified he answered a call as a member of the Elba Rescue Squad on March 1 1979. He observed Sheriff Grantham on the pavement in the front of the jail. They placed the Sheriff in the ambulance and transported him to the Elba General Hospital emergency room. Dr. Bruno Santa Rossa stated he observed Sheriff Grantham at the Elba General Hospital on the morning of the shooting and, after assessing his condition, pronounced him dead upon arrival. Dr. Richard Roper of the Alabama Department of Forensic Sciences testified he examined the body of Sheriff Grantham on Ihe trial court's determination of sentence, dated June 30, 1981, is hereto att\ched as Appendix A (Vol. 2, R. 370-372). ‘ March 1, 1979, in Elba and found three gunshot wounds to the chest, right face, and left side of the head. In his opinion, Sheriff Grantham's death was caused by acute hemorrhage and central nervous system trauma, due to multiple gunshot wounds to the body and head. On cross-examination, he testified his notes reflected that the body exhibited a set of natural teeth. He identified o photograph of Sheriff Grantham as that of the man he examined on March 1, 1979. Billy Ray Cooper stated he became acquainted with appel- lant as a fellow inmate at the Coffee County Jail in 1976. Toward the end of 1977, he heard appellant state on two or three occasions that he was being held without any reason and that he would “get even and kill that 8. o. B., referring to Sheriff Grantham. On cross-examination he was asked when this occurred. He stated it was in November, and that on the third occasion, appellant struck the jailer and tried to go downstairs to get to the Sheriff. James Kenneth Holder, another fellow inmate of appellant's, testified he heard appellant state that they had no reason to hold him in jail, that he didn't belong there, and that he was going to get even one way or the other. The State rested at the close of Holder's testimony, and appellant's motion for acquittal, based upon the State's failure to prove a prima facie case, and motion to exclude were denied. The appellant called Ms. Bernice Clay who stated she was the record keeper for Dr. James L. Clay. The records indicated that Dr. Clay, a dentist, had relined a set of upper and lower dentures for Sheriff Grantham in 1969. The defense next called Dr. William M. Rudder to testify. Dr. Rudder, a psychiatrist on the staff of Searcy Hospital, did not appear. The trial court refused to issue a bench warrant for his appearance after it was learned that the Sheriff's office, in the county where Dr. Rudder was located, was closed for a legal holiday and it could not be ascertained if Dr. Rudder had actually been served with a subpoena. Appellant's counsel conceded to the trial court that by statute a member of the Searcy staff could 8 \ notbe compelled to attend court proceedings. After the court denied appellant's motion for a continuance to perfect service on Dr. Rudder, a deposition taken from Dr. Rudder was read into evidence at appellant's request in lieu of Dr. Rudder's appearing at trial. Dr. Rudder stated in his deposition that he had examined appellant on July 3, 1979. His final diagnosis after 8 to 10 hours observation of appellant over a period of 10 months was paranoid type schizophrenia in partial remission on medication. He stated that this was a mental disease, and in his opinion, appellant did not know right from wrong at the time of the alleged offense on March 1, 1979. Appellant was completely out of touch with reality and, in Dr. Rudder's words, would be con- sidered “crazy” under any definition in any part of the world. At the end of the time appellant spent at the institution, he Vas in fairly good remission from the mental disease as a result of drug therapy. The defense rested after presenting Dr. Rudder's deposition. The State called Dr. Donald Crook as a rebuttal witness. Dr. Crook, a medical doctor practicing in Alabama, examined appellant for 30 minutes at the request of the circuit court on June 6, 1979. He found appellant's behavior and answers were appropriate to the questions asked of him. In his opinion, appel- lant was sane at that time and exhibited no symptoms indicative of schizophrenia. Dr. Crook testified he was also familiar with appellant, having treated him for minor ailments on a couple of occasions from the time appellant was 15 years old. Dr. Bancroft Cooper, a practicing physician in Elba, testified he examined appellant for 20 minutes on June 6, 1979 at the circuit court's request. In Dr. Cooper's opinion, appel- lant was not insane at the time he examined hin. Douglas McKeown, a licensed clinical psychologist, examined the appellant over a period of 8 to 10 hours on April 23 and April 27, 1981, at the Houston County Jail in Dothan, Alabama. Appellant's objewcion to the introduction of Dr. McKeown's testimony, based pon privileyed. communication and equal protection, was overruled. In Dr. McKeown's opinion, appellant knew the difference between right and wrong on March 1, 1979. His diagnostic impression was, however, that appellant was suffering from paranoid schizophrenia, a disease of the mind. Dr. McKeown had never seen appellant, however, when he was not under the medication prescribed for his mental — problems. The State rested at the close of Dr. McKeown's testi- mony and requested that the court dismiss Counts 3, 4, and 5 of the indictment. Appellant's motion to exclude the evidence as to Counts 1 and 2 for failure to prove the Sheriff was "on duty” was denied. I Appellant argues the jury's verdict was contrary to the law and the evidence presented, in that the jury should have returned a verdict of not guilty by reason of insanity. In reviewing the question of insanity, the court must apply the following general principles, enumerated in Herbert v. State, 357 80. 2d 683 (Als. cr. App.], cert. denied, 357 80. 2d 690 (Ala. 1978): "1. By statute, there is a presumption of sanity extending to all persons over the age of 14. “2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state. ¢ "3. The burden upon the defendant is to es- tablish the issue of legal insanity by a pre- ponderance of the evidence and to the reason- able satisfaction of the jury. “4. The question of insanity at the time of the ssion of the crime is a matter to be determined by the jury from a consideration of all the evidence. "5. In making its determination, the jury may reject all expert testimony though it is with- out conflict. "6. However, opinion testimony, even of en- perts must be weighed by the jury and may not be arbitrarily ignored. However, where proof of insanity is both overwhelming and uncontradicted, the evidence of insanity may be so strong 5 Seyi ess 105 WA * meg * K : and undisputed that the jury should be so instructed, and a . jury verdict to the contrary must be reversed. Christian v. State, 351 80. 2d 623 (Ala. 1977). The evidence pertaining to appellant's sanity in the instant case is both extensive and contradictory. Appellant's sanity was first brought into question by a pre-trial motion by appellant's counsel requesting an investigation of appel- lant's sanity pursuant to § 15-16-20, Code 1975. The trial court appointed Dr. Donald Crook and Dr. Bancroft Cooper to examine the appellant. Both were medical doctors of con- siderable experience, but neither specialized in psychiatry. Each doctor testified at trial that, in his opinion, appellant was not insane at the time of his examination of appellant on June 6, 1979. Dr. Crook stated that based upon the short time he spent with appellant, he believe appellant was sane at that , time. He also testified that he had treated appellant several times over a period of years for various complaints, and that appellant had never exhibited any symptoms of schizophrenia. He stated he would, however, defer in his opinion of appel- - oan — — — — lant“s sanity to a psychiatrist who had spent a considerably greater period of time observing appellant. br. Cooper stated that in his opinion appellant was not insane at the time of his examination of him on June 6, 1979. He further testified that, based upon his 20 minute interview with appellant, he could not make a decision as to whether appellant was a schizophrenic, paranoid type on the day the murder occurred. Despite the two physicians’ positive view of appellant's sanity, the trial court granted appellant's motion requesting that a three-member Lunacy Commission be appointed in accordance with § 15-16-22, Code 1975. Appellant was then committed to the custody of the Superintendent of Searcy Hospital for ob- servation by the Lunacy Commission by order dated June 20, 1979. The report of the Lunacy Commission dated August 16, 1979, which was returned to the circuit court clerk, indicated a diagnosis of schizophrenia, paranoid type and that appellant was presently -6- 30 : - 3 | N * ir 5 y ’ & de 1 Wa | oe. a insane and incompetent. The report also stated it was the ‘ unanimous opinion of the Lunacy Commission that appellant was insane at the time of his admission to Searcy Hospital, and that appellant was probably insane and mentally incompetent at the time of the commission of the offense. (Emphasis added.) The trial court then issued an order dated August 22, 1979, ending the Lunacy Commission and retaining appellant in the custody of the superintendent of Searcy Hospital until such time as he was restored to mental competency. By letter dated April 7, 1980, the trial court was notified by Searcy Hospital that appellant was competent to stand trial, his mental illness having been placed in partial remission by medication. On April 11, 1980, the court ordered that custody of appellant be transferred to the Sheriff of Coffee County, and appellant was placed in the Houston County Jail. The report of the Lunacy Commission was introduced at trial and is present in the record. As well, the appellant introduced the deposition of Dr. William Rudder, after Dr. Rudder, for some reason, failed to respond to & subpoena to attend the trial. Dr. Rudder, a psychiatrist and member of the Lunacy Commission, testified appellant suffered from the psychosis of paranoid type schizophrenia, but that it was in partial remission under medication. In his opinion, appellant did not know right from wrong on the date Sheriff Grantham was murdered, and was completely out of touch with reality. He stated appellant was not a borderline case and would be considered “crazy” any place in the world. Because of the time lapse between the Lunacy Commission's diagnosis of appellant and the actual date set for trial the prosecution filed a motion on April 15, 1970, requesting that appellant be examined again to determine his mental competency. After a hearing on the motion, at which appellant was represented, the court granted the motion and ordered that the appellant be examined by Dr. Douglas McKeown, a licensed clinical psycholo- gist. Dr. McKeown was called as a rebuttal witness for the State, over appellant's objection, and testified that he examined appellant at the Houston County Jail on April 23 and 27, 1981. ‘ 9 i h 95 eae 3 1 ip ‘ He conducted a comprehensive psychological evaluation of appel- lant, including a psychological interview, over a period of 8 to 10 hours. In Dr. McKeown's opinion, appellant did not know the difference between right and wrong on the date the Sheriff was shot. It was also his conclusion that appellant was suf- fering from paranoid schizophrenia. Dr. McKeown stated that he had never observed appellant when he was not under the medica- tion prescribed for his mental problem. After consideration of all the testimony in this case, we do not find that the evidence of insanity was both overwhelm- ing and uncontradicted. There was evidence presented which could have supported a reasonable inference that the homicide was an act committed by a man which the law would define as sane. Although conflicting evidence was presented by the expert witnesses who cxamincd appellant, it is clear that the issue of whether appellant was sane or insane at the time of the offense was a question for the jury to decide. Nobis v. State, 401 So.2d 191 (Ala.Cr.App.), 401 So.2d 204 (Ala. 1981). The evidence was simply not sufficient as a matter of law to overcome the pre- sumption of sanity and to justify reversing the jury's verdict. Graham v. State, 383 So.2d 892 (Ala.Cr.App.), cert. denied, 383 80. 2d 895 (Ala. 1980). 11 Appellant asserts the trial court abused its discretion in refusing to grant his motion for a change of venue, based upon prejudicial pre-trial publicity. The record indicates a large amount of coverage was given to the sensational and notorious crime by televi ion, radio, and the printed news media. However, the vast majority of the news accounts were strictly factual in nature and did not editorialize in such a manner as to inflame the community. Coon v. State, 380 80. 2d 980 (Als. Cr. App. 1979), affirmed, 380 So.24 990 (Ala. 1980). Additionally, much of the coverage occurred at the time of the murder, or in the months immediately following the event, with relatively little coverage occurring at the time of the trial over two years later. * The existence of widespread publicity in and of itself does not require a change of venue. Dolvin v. State, 391 80. 2d 666 (Als. cr. App. 1979), affirmed, 391 80. 2d 677 (Ala. 1980); Speigner v. State, 367 80. 2d 590 (Ala.Cr.App.), cert. denied, 367 80. 2d 597 (Ala. 1979). Without proof of actual prejudicial influence upon the jury, a trial court will not be found to have abused its discretion in refusing to grant a motion for a change of venve based upon pre-trial publicity. Dolvin, supra. We have reviewed the record carefully, scrutinizing both the media coverage itself, and its effect upon the jury venire as revealed by the voir dire examination of the prospective jurors. We note that any potential prejudicial effect of media coverage was diminished by the passage of time. Speigner, supra. The record contains no showing of actual prejudice such as would have rendered it reasonably unlikely that the appellant could secure a fair and impartial trial. Dolvin, supra. The following quotation from the record is representative of questions asked of each member of the jury venire by the court and appellant's counsel: “THE COURT: We are going to now enter upon a detailed inguiry with you, and we are going to do it in such a fashion that we will call twelve individual jurors to come and have a seat in the jury box. After you are in the box I will ask you some questions and then the counsel for each will have the opportunity to ask the questions. — * * * * * “Do any of you have any interest in the con- viction of or the acquittal of the defendant Magwood? (No response.) “Have any of you made any promise given any person any assurance that if you were selected on the jury to try this case you will convict or you will acquit the defendant Magwood? (No positive response.) ~~ “Are any of you witnesses in this case? (None. “Were any of you on the grand jury at the Special March Term, 1979, which returned this indictment, being on 12 March, 1979, ‘with Bernice Winston, forewoman? (None.) "Do an; f you as jurors think that a con- viction should not be had on circumstantial evidence? (None) "Do you as a juror have a fixed opinion against punishment by imprisonment in the penitentiary? (None.) “Ladies and gentlemen, a possible penalty, should the defendant be found guilty, is death by electrocution. Is there any juror who has an opinion against punishment by death by electrocution? Stated another way, are any of you opposed to capital punishment? (No juror responded affirmatively.)” “QUESTIONS BY MR. CASSADY: "Q. Ladiesand gentlemen of the jury did any of you know Neil Grantham? (Several of the twelve indicated they knew Sheriff Grantham.) "Q. Let me ask it this way, is there anybody that did not know him? (One lady indicated she didn't.) "Q. Were you a casual acquaintance or were you @ close acquaintance, if that is a proper way to put it. (All answered casual.) "Q. I know you have all heard about this case or either read about it? (Several indicated affirmative.) "Q. Has what you have read or heard, has it in any way, in any way in your mind--there is nothing wrong in saying if it has--prejudiced your thinking about this case? (All negative response.) "Q. Nothing that you have read or heard would in any way affect you to any extent in your deliberations if you served on this jury? (Negative response.) "Q. Those of you who knew Neil Grantham I know would know one thing that he would expect whatever the circumstances that a defer lant, whoever he was, or whatever he did to «st a fair trial. I knew him, he was my friend, I know he would want that. Now, is there anyone of you sitting in this jury box, regardless of the circumstances, who would not give this de- fendant a fair trial in this case? It is in- portant. It is important to the defendant, it is important to the State, it is important to you as human beings, and I am asking you if you will listen to s evidence that comes from this witness stand and that alone and make up your mind as to this man's innocence or guilt, and nothing but that, nothing else coming into your mind regardless. Can you all do that? (No response to the contrary.) — 10 34 “MR. CASSADY: That's all I have.” (R. 98-103) Of the entire venire, one juror answered that he had a fixed opinion as to appellant's guilt or innocence. This juror was an employee of the Coffee County Sheriff's Department which had been involved in the investigation of the Sheriff's assassi- nation, and he was excused from serving. None of the questions of appellant's counsel concerning prejudice as a result of publicity were answered in the affirmative. Two jurors expressed an opinion of possible partiality, but stated it was based upon their long-time friendship with Sheriff Grantham, not pre-trial publicity. Both jurors were excused. The burden is upon appel- lant to demonstrate the actual existence of a prejudicial opinion in the mind of the jurors which will raise a presumption of partiality. Speigner, supra. The introduction of news articles alone, without more, is not sufficient evidence to justify a change of venue; their prejudicial effect must be shown. Dolvin, supraat 600; Dial v. State, 387 80. 2d 871 (Ale. Cr. App. 1979), reversed on other grounds, 387 So.2d 879 (Ala. 1980). The appellant in the instant case presented no evidence that the jurors were actually prejudiced against the appellant's case as a result of extensive publicity. Without such proof, this court could not find error in the trial court's refusal to grant a motion for change of venue. Dolvin, supra; Moberg v. State, 385 80. 2d 74 (Ala.Cr.App. 1980); Coon, supra. 111 Appellant argues that both the trial court and the jury failed to properly weigh mitigating circumstances. We have examined the record and find that the trial court luly and properly charged the jury concerning mitigating circumstances. The trial judge's written finding of fact also indicates he considered and weighed any possible mitigating circumstances in appellant's favor. We find no error in that regard. Iv The trial court's failure to grant appellant's request for funds to hire a psychiatrist or psychologist of his own -ll- 35 eee F ee LR DO Oe ke ee choosing is urged by appellant as reversible error. We do not agree. As has often been stated, a denial of funds to pay ex- porte for investigations and the assistance of experts does not amount to a deprivation of constitutional rights. Thigpen v. State, 372 80. 2d 385 (Ala.Cr.App.), cert. denied, 372 80.24 387 (Ala. 1979); Brown v. State, 392 80. 2d 1248 (Ala.Cr.App. 1980), cert. denied, 392 60. 2d 1266 (Ala. 1981): Johnson v. State, 335 80. 2d 663 (Ala.Cr.App.), cert. denied, 335 80. 2d 678 (Ala. 1976), cert. denied, 429 U.S. 1026 (1976). This general rule applies equally to psychiatric experts and specialists. Nelson ». State, 405 80. 2d 392 (Ala.Cr.App. 1980), reversed on other grounds, 405 80. 2d 401 (Ala. 1981). Additionally, as indicated heretofore in this opinion, the trial court exhausted @ll available sources to assist appellant in presenting evi- dence in support of his insanity plea. Not one, but six experts examined appellant at the State's expense. Clark v. State, 56 Als. App. 67, 318 80. 2d 613 (1974), writ quashed, 294 Ala. 493, 318 80. 2d 622 (1975), cert. denied, 423 U.S. 937 (1975). Three experts were independent, and three were State connected. Al- though a defendant may have some right to the appointment of an expert for preparation of his defense, there exists no consti- tutional right to have a private psychiatrist of the defendant's own choosing appointed at public expense. (Emphasis added.) Willie Clisby, Jr. v. State. $0.24 _ [Ale cr. App. 1982), 6 Div. 576 (Ms. May 2, 1962). ‘The trial judge's actions appro- priately protected appellant's rights in this regard. V. Appellant alleges the trial court erred in admitting the testimony of Doctors Crook, Cooper, and McKeown, because appellant was not advised of the right to remain silent before the interview, and because appellant's counsel was either not present at, or not informed of, the time of the interviews. Appellant contends the introduction of this expert testimony violated the privilege against self-incrimination and the right to effective assistance of counsel guaranteed under the Fifth -~12- 36 . * . . and Sixth Amendments to the United States Constitution. He cites Estelle v. State, 451 U.S. 454, 101 S.Ct. 1666, 68 L.Ed.2d 359 (1981), as dispositive of this issue. The Supreme Court held in Estelle that the use of certain psychiatric testimony at the sentencing phase of defen- dant's apitel murder trial to establish his future dangerous ness violated his Fifth Amendment rights. The court determined that where a defendant never initiated a psychiatric exam, nor ever attempted to introduce psychiatric evidence, he could not be compelled to respond to a psychiatric examination instigated sua sponte by the trial court if the statements could be used against him at trial. Hence, it was necessary in such a 81 u- ation that appellant be advised of his right to remain silent and of the fact his answer could be used against him before such examination could take place. The failure to so advise the appellant rendered the psychiatrist's testimony, as to the sub- stance of disclosures made to appellant, inadmissible at trial. The court found there would have been no Fifth Amendment viola- tion if the psychiatrist's testimony had been limited to the question of the defendant's competency to stand trial. The court also was careful to distinguish Estelle from a fact situa- tion involving a psychological interview occasioned by a de- fendant's plea of not guilty by reason of insanity at the time of the offense. To allow a defendant to remain silent, when he asserts the offense of insanity and introduces supporting psychiatric testimony, might deprive the State of its only effective measure of controverting the defendant's proof on an Acne interjected into the trial by the defendant himself. Estelle, supra, and cases cited therein. As woll, the court found that the defendant's Sixth Amend- ment right to effective assistance of counsel was violated be- cause the defendant's counsel was not informed in advance that the psychiatric examination would encompass the issue of future dangerousness. The defendant was thus denied the valuable assistance of his counsel in deciding whether to consent to the We find in our review of the instant case that Estelle is factually distinguishable and hence does not require reversal here. Unlike the defendant in Estelle, appellant's counsel herein first placed appellant's sanity in question by filing @ motion which requested that an investigation be held into appel- lant's sanity, and that, upon a finding of incompetence, appel- lant be removed to a State hospital for the insane. Dr. Crook and Dr. Cooper were appointed in compliance with the trial court's order granting appellant's motion. Not only were appel- lant's counsel] aware that the two doctors examined appellant, but they were the parties that requested such an examination. Additionally, the testimony of the two doctors was substantially confined by the prosecution to the question of appellant's mental competency at the time of the examination, and not at the time of the crime. Additionally, we point out that all the ex- pert testimony objected to here came in as rebuttal testimony, after the defense rested, having presented a defense of not guilty by reason of insanity. As to Dr. McKeown, a hearing was had on the State's motion requesting a further examination of appellant's mental status after his release from Searcy Hospitel. Appellant and his counsel were present at the hearing on the motion and were informed of the pending examination by Dr. McKeown. Appellant's counsel agreed to the examination, conditioned upon his receiving a copy of the report. Appellant's counsel stated for the record that the court order granting the State's motion would be in line with the motion for a mental examination appel- lant had previously requested. Again, Dr. McKeown's testimony was only brought in by the State on rebuttal after appellant's insanity defense was presented. In review, we find appellant's counsel initiated the inguiry into appellant's sanity, resulting in the examination by Doctors Crook and Cooper. Appellant's counsel acquiesced in the examination by Dr. McKeown, albeit at the State's re- quest, and stated such an examination was in partial compliance with his own motion. At arraignment, appellant pled not guilty - 14 — 38 by reason of insanity, and at triel presented an insanity de- tense. The testimony of the three experts came in only on re- buttal, after appellant presented an insanity defense. Their testimony dealt with their diagnosis of appellant's mental competency at various points in time and did not deal with the substance of any incriminating information revealed to them by appellant during their examination. Appellant's counsel were informed of each examination and had every opportunity to counsel with their client. Appellant and his counsel informed Dr. McKeown that the examination would be reported to the court, and there could therefore be no expectation of confidentiality. We hold that by actively pursuing an insanity defense and intro- @ucing the deposition of Dr. Rudder as a defense witness, appel lant waived any potential psychotherapist-patient privilege or privilege against self-incrimination against the subsequent testimony of Dr. McKeown on rebuttal. “As the Court of Criminal Appeals notes in its opinion, there are states which hold that by pleading insanity, a criminal defendant waives his statutory privilege against disclosure of a ‘psychotherapist- patient communication.’ The better reasoned cases hold, however, that there must be some presentation of evidence of insanity in addition to the plea, in order for the question of ‘waiver’ to erise...." 50 8. 11 Day, 378 80. 2d 1159 (Ala. 1979), To hold otherwise would be to allow appellant to call all those psychotherapists or psychiatrists, who examined appellant under State order, he desired. Then, on a claim of privilege, appel- lant would be able to prevent the State from calling experts who examined him for the same purpose on rebuttal to refute the appellant's defense. Ex parte Day, supra; Estelle, supra, and cases cited therein. vI Appellant asserts that the trial court's failure to issue @ bench warrant to require Dr. Rudder to appear and testify was reversible error. Appellant introduced Dr. hudder's deposition at triel, after his failure to appear and the trial court's re- fusal to command his appearance. br. Rudder is on the staff of Searcy State Hospital. Section 22-50-22, Code 1975, provides that -15- é te ® *. ' a 6 any physician of a State mental hospital may not be compelled to attend as a witness to present expert testimony in any case or any question of sanity if he certifies in writing within 10 days after receipt of a summons that his absence from the hospital would interfere with his professional duties and the welfare of his patients. A defendant who desires the testimony of tne doctorsmay, however, depose them on all matters in- volving their expert opinion. This furnishes to the defendant a constitutional alternative to compulsory attendance. Seay v. State, 390 So.2d 11 (Ala. 1980), cert. denied, 449 U.S. 1134 (1980). Appellant's counsel at trial had not ascertained if Dr. Rudder had been served with the subpoena at the time he was called to testify. The trial judge contacted the local county courthouse to verify service, but was unable to receive any information because the offices were closed for a legal holiday. No certificate from Dr. Rudder of his inability to attend the trial appears in the record. Quite clearly, Dr. Rudder could not have been compelled to attend had such a certification been provided. Appellant had taken the precautionary step of deposing Dr. Rudder in advance. This deposition was in fact offered and received into evidence. Appellant's counsel did not personally verify service on his witness. He was permitted by the court to introduce Dr. Rudder's deposition, in lieu of his testimony. The trial court used every available avenue to determine if Dr. Rudder had been served, after it became apparent that appellant had failed to do so. If Dr. Rudder had been served, he could have easily refused to attend under the statute. The subpoena for Dr. Rudder was issued May 26, and the trial was on June 1 and 2. ‘The 10 days allowed by statute for Dr. Rudder s certified response to the subpoena had not ex- pired at the time appellant called Dr. Rudder to testify. We find no error or prejudice to the appellant in the trial court's refusal to issue the bench warrant under these circumstances. Pollard v. State, 358 So.2d 778 (Ala.Cr.App.), cert. denied, 358 80. 2d 762 (Ala. 1978). - 16 - 40 vil Appellant argues the statute under which he was indicted is unconstitutional. This question has been resolved by the Alabama Supreme Court in Beck v. State, 396 80. 2d 645 (Ala. 1981), and by our recent decision in Clisby, supra. The Supreme Court of Alabama in Beck, supra, has indi- cated the standards and procedures it requires this court to follow in reviewing capital murder cases. We have closely scrutinized this case in light of those standards, and find that the crime was properly punishable by death, and that the sentence was appropriate in both its relation to the crime and to the appellant. There were no accomplices with which to com- pare appellant's punishment. We have searched the record for error prejudicial to the substantial rights of appellant and have found norm. This case is, therefore, affirmed. AFFIRMED. All the Judges concur. ° ite 41 7 20 ° 0 ö APPENDIX A * 5 y 1 „ STATE OF ALABAMA, ) IN THE CIRCUT COURT OF Plaintiff ) oes ; COFFEE COUNTY, ALABAMA ' vs. g N 1 ) ELBA DIVISION BILLY JOE MAGWOOD, ) Defendant ) CASE NO. CC 79-7 . On June 2, 1981, Billy Joe Magwood was found guilty of the capital felony set forth in Section 13+11-2(a)(5), Code 1975, and for the aggra- vated murder of Coffee County Sheriff Neil Grantham, the Jury, fixed. the punishment at death. A hearing mandated dy Sections 13-11-3 and 13-ll-4, Code 1975, was ‘held June 9, 1981, and the issue of sentence was submitted. The court is convinced the jury took into account the circumstances of the murder together with the character and propensity of Magwood hnder all relevant evidence. The court concludes there was no arbitrary and capricious exercise of the power of the jury in finding guilt and fixing the punishment at death. | Magwood beyond any doubt. committed the charged aggravated murder. The “aggravation” found to exist beyond-all doubt is that Magwocd unlaw- fully, intentionally, and with malice aforethought killed Coffee County Sheriff Neil Grantham by shooting him three times at close range with a pistol while Grantham was on duty and because of official job related acts as Sheriff of Coffee County, Alabama. The court does hot ‘find the existence of an aggravating circumstance in Section 13-11-6, Code 1975, other than the “aggravation” alleged in, the indictment. Beck v. State, Ala., 396 80. 2d 645 (1981); Kyser v. State, Ala., 380.20 (1861). The court is required to focus on the particularized nature of the crime. 8 is‘particularized by the aggravation. . The matters relating to any mitigating circumstances including those enumerated in Section 13-11-7, Code 1975, have been considered. The court concludes that Magwood has no known significant prior criminal activity other than a conviction for possession of a controlled substance and his age at the time of the murder of Sheriff Grantham was twenty-seven years. These mitigating circumstances exist. The jury in the guilt phase ‘of the trial rejected the not ane dy reason of insanity plea, The ' 9 ars area al Ret, 1 N under bn «. extreme | 1 74. W RY - 4//4 PV “tn 1 - ' ° 20 0 * * W or emotional dioverbenes and when the three bullets ams? fired into the * dody of Granthm, Magwood had the capacity to appreciate the criminality a of his act. Magwood' s conduct was contrived, calculated and previously designed with the capacity to conform his conduct to the: requirements of the 140. . The court has considered the relevant facets of the; character and record of Billy Joe Magwood and the circumstances of the particular offense. Magwood has been considered as a uniquely individual human being and not a faceless yndifferentiated person who stands convicted ofa designated capital offense. The court has considered the factors of why" & death sentence should be imposed and why it should not be imposed. The circun- stances of aggravation and mitigation have been weighed against each other. IT IS, THEREFORE, ORDERED AND ADJUDGED BY THE COURT AS ** 1. That the verdicts of the jury finding Billy Joe Magwood guilty of the capital felony and fixing the punishment at death for the murder of Coffee County Sheriff Neil Grantham are sustained by the evidence be- yond 2 reasonable doubt. 2. That the fixing of the punishment at death by the jury was not the result of passion, prejudice or other arbitrary factor while delib- erating and fixing the sentence. 3. That Billy Joe Magwood is adjudged guilty of the capital offense . u. That does Billy Joe Magwood have anything to say before sentence of the murder of Coffee County Sheriff Neil Grantham. +9 %e { or anything to say why the sentence of the luw should not be imposed in accordance with law. ö 5. That the age of Magwood and no known significant prior criminal activity by hin are insufficient to outweigh the unlawful, intentional | and malicious killing of Coffee County Sheriff Neil Grantham by shooting him with a pistol while Grantham was on duty and because of official job related acts as’ Sheriff of Coffee County, Alabama. * 6. That it ds the judgment and sentence of the court that you, Billy Joe Magwood, for the offense of aggravyted murder, be sentenced to death by electrocution on August 4, 1981, dy the executioner causing to pass through the body of e Joe Magwood a current of electricity ot such intensity to cause death, and the application and continuance of . a. a — 0 eh, eiirnbnits hdi your boa, in, * 1 wiel vou ee oba. * „% a VS cae | ,*. 8 0 47 7 RR 9 2 95 7 j 4 “i 413 7. That execution of the sentence of death is stayed: Sending auto- 3 matic review provides by Section aun. Code 1975, sna Section 12- =42- 180, Coge 1975. 0 DONE AND ORDERED this ott, day of June, 1981. Mew „ * 5 — STATE OF ALABAMA e s * I, Jim Eirfs, Clerk ‘of the Circykt Court, Coffee County, Alabama, original docum that the foregoing is a true and correct copy of the 1 document as the same appears on record in my office, This the 14th day of July, 1982, TERM 1983 Court, US. RECEIVED 3 wumper 89-GSG6O APR 12 1983 Alevrvder L. Steves, Clerk BILLY JOE MAGWOOD, PETITIONER, vs. STATE OF ALABAMA, DEFENDANT The Petitioner, Billy Joe Magwood, who is confined on death row at the Alabama State prison known as Holman Unit asks leave to file the attached petition for a Writ of Certiorari to the Alabama Supreme Court without prepayment of costs and to proceed in forma pauperis pursuant to Rule 5-B The Petitioner's affidavit in support of this motion is attached hereto. Respectfully submitted, A & TURNER Office Box 1305 „ Alabama 36701 et. CERTIFICATE OF SERVICE This is to certify that I have served counsel for the opposing party with a copy of the within and foregoing Motion by depositing a copy of the same in the United States Mail, properly addressed with postage prepaid. This the lithday of 51863. * e COURT OP THB UMITED_ETFTEER CEIVED BILLY JOE MAGWOOD, ‘ APR 1 6 1983 2 Orrave OF THE Cenk PETITIONER, SUPREME COURT, US. vs. * CASE NUMBER STATE OF ALABAMA, ; DEFENDANT, . 0 AFFIDAVIT IN SUPPORT OF MOTION FOR LEAVE N FORMA STATE OF ALABAMA APFIDAVIiT COUNTY OF ESCAMBIA I, Billy Joe Magwood, being first duly sworn according to law, depose and say, in support of my motion for leave to proceed without being required to prepay cost or fees: A. (1) I am the Petitioner in the abcve entitled case. (2) Because of my poverty, I am unable to pay costs of said cause. (3) I am unable to give security for the same. (4) 1 believe that I am entitled to the redress I seek in said case. B. The nature of said cause or case is briefly stated as follows: „1 was sentenced to death by trial judge in the Circuit Court of Coffee County, Alabama, on a capital charge of having killed the Sheriff of Coffee County. The present proceeding was commenced on direct appeal through the Alabama State Court system. There are several points of error: Foam H AFF: DAVIT REQUESTED (1) The Court denied my motion for change of venue based upon prejudicail pre-trial publicity. (2) The case was submitted to the jury in the presence of overwhelming evidence introduced which rebutted the presumption of sanity. (3) Improper denial of my request to hire a psychologist for evaluation after the State hired a psychologist to evaluate me over a year after the incident and over a year after I had been placed on medication. (4) That the capital sentencing scheme in Alabama's death statute violates the eighth and fourteenth amendments and that statue, as applied to me, resulted in an unconstitutional sentence of death. STATE OF ALBAMA COUNTY OF EAC Y BEFORE ME, a Notary Public, in and for said County and State, personally appeared BILLY JOE MAGWOOD, who being duly sworn, Geposes and says: That the allegations contained in the foregoing Affidavit are true and correct to the best of his information, knowledge and belief. Wy, / A, 2% — B SWORN TO and SUBSCRIBED before me on this * / 1983. MY COMMISSION EXPIRES: mye ebe 1/10/89 — —ä—ÿ— — — — —— — ——— — * - N * a N e oe va. rine Oe it ae --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_1408%3A1. Public record. Not legal advice.