On October 16, 1976, Thomas Whisenhant took Cheryl Lynn Payton at gunpoint from the Compact Store where she worked as a clerk, at the corner of Nan Gray Davis Road and Sweedtown Road in Mobile County. He drove her to a wooded area, raped her in his pickup and shot her once in the head. The next day he went back to her body and mutilated it. Her body was found in a field in Irvington, and he was caught after a chase that ended when his truck wrecked; with twenty police cars around the woods, his wife, brought out to the scene, called to him over a loudspeaker to come out. Within an hour of his arrest he admitted killing two other convenience-store clerks: Venora Hyatt, abducted in April 1976 and found by a kudzu-covered house, and Patricia Hitt, shot in the forehead in a Compact Store in Mobile in November of that year. He later pleaded guilty to both of those murders.
These ten opinions are the thirty years of litigation over the sentence for Cheryl Payton. Tried in Jefferson County on a change of venue, he pleaded insanity and was convicted and sentenced to death on September 7, 1977; the Court of Criminal Appeals reversed in 1979 because of the prosecutor’s closing argument. Retried in Mobile in 1981, he was convicted again, and the appeals courts sent the case back for new sentencing hearings in 1982, 1983 and 1984. A third sentencing jury returned death in 1987, which the state courts affirmed in 1988 and 1989, and in 2009 the Eleventh Circuit turned down his federal petition, which argued among other things that his 1981 lawyers had abandoned the insanity defense and that the prosecutor had handed the judge a draft order the defense never saw.
Alabama executed him by lethal injection at Holman prison near Atmore on May 27, 2010. He had spent thirty-two years, eight months and twenty days under sentence of death, longer than anyone else in the state’s history, and witnesses said he said nothing and did not look at the victim’s family.
The insanity defense runs through all of these opinions, and the courts set out both sides at length: the three state psychiatrists at Searcy Hospital who found him competent and sane in February 1977, the defense experts who called him a chronic schizophrenic, the co-workers and neighbors who said they never saw him act strangely, and his sister’s account of a violent childhood. Each jury rejected the defense, and the court’s summaries are summaries of contested testimony, not findings that he was or was not ill. His 1963 court-martial for assault with intent to murder, and the other attacks he confessed to, appear as aggravation evidence and were never tried in these cases.
These are decisions of the Alabama appellate courts and of a federal court of appeals, all public records with no restriction on their use. Cheryl Payton, Venora Hyatt and Patricia Hitt are named, and so are the police, the toxicologist, the doctors, the parole officer, the lawyers, the prosecutors and the judges. We have given initials to her husband, D.P.; to Whisenhant’s sister E.S. and their minister R.N.; to the men who found the store empty and the body, T.L., R.L., G.R., G.P., E.T. and C.T.; to the rebuttal witnesses D.W., M.R., J.R., K.B. and J.B.; to his former co-worker S.H.; and to the jurors and prospective jurors whose answers are quoted.
The text comes from the Caselaw Access Project and was not produced by OCR from a scan of ours; its occasional misreadings are printed as they stand. We closed thirty-three words split across a line by the printed column, among them “Pay-ton,” “Whisen-hant” and “Se-arcy,” where the same word appears unbroken elsewhere in the file.
Thomas Warren WHISENHANT v. STATE.
6 Div. 634.
Court of Criminal Appeals of Alabama.
Feb. 20, 1979.
Rehearing Denied March 27, 1979.
Morris S. Dees, John L. Carroll, Dennis N. Balske, Montgomery, for appellant.
William J. Baxley, Atty. Gen., and James F. Hampton and J. Anthony McLain, Asst. Attys. Gen., for the State.
[OPINION BY HARRIS, Presiding Judge. type=majority]
HARRIS, Presiding Judge.
This is a death penalty case. Appellant was indicted on May 7, 1977, by the Grand Jury of Mobile County for the rape and intentional killing of Cheryl Lynn Payton. The indictment was in three counts, but, at the conclusion of the trial, the trial court struck the third count.
Omitting the formal parts of the two counts upon which appellant was tried read as follows:
“The Grand Jury of said county charge, before the finding of this indictment, Thomas Warren Whisenhant, alias Tommy Whisenhant, whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully and intentionally and with malice aforethought kill Cheryl Lynn Payton by to-wit: on October 16, 1976, during the nighttime the said Thomas Warren Whisenhant, alias Tommy Whisenhant abducted, at gunpoint, the said Cheryl Lynn Payton from the Compact Store located at the intersection of Nan Gray Davis Road and Sweedtown Road in Mobile County, Alabama, where the said Thomas Warren Whisenhant ravished the said Cheryl Lynn Payton and intentionally killed her by shooting in the head with a gun in violation of Act No. 213, Section 2, Sub-section c (Act 213, Section 2(c) Acts of Alabama, Regular Session, 1975, against the peace and dignity of the State of Alabama.
“The Grand Jury of said County further charge, that, before the finding of this indictment, Thomas Warren Whisenhant, alias Tommy Whisenhant, whose name is to the Grand Jury otherwise unknown than as stated, did unlawfully, intentionally and with malice aforethought. kill Cheryl Lynn Payton by shooting her with a pistol after the said Thomas Warren Whisenhant, alias Tommy Whisenhant, had ravished the said Cheryl Lynn Payton, against the peace and dignity of the State of Alabama.”
On December 13, 1976, appellant was ordered sent to Searcy Hospital for psychiatric examination to determine whether he was competent to stand trial. The following report was returned to the court on February 24, 1977.
“Under the provisions of an Act of the Legislature of Alabama, approved April 17, 1933 (Title 15, Section 425, Code of Alabama recompiled 1958 and as amended by Act 881 — Acts of Alabama 1965) one Thomas W. Whisenhant, charged with the offense of Murder in the First Degree, was admitted in the Searcy Hospital, Mount Vernon, Alabama, on December 13, 1976, under order of Honorable Joseph M. Hoeklander, Circuit Judge, Circuit Court of Mobile County, Alabama, dated December 13, 1976, for psychiatric examination, observation and report as provided in the act referred to herein. Further, the commitment order specifies examination in compliance with Title 15, Section 426 and Title 15, Section 428. “In accordance with the provisions of the acts referred to above, the Superintendent of the Searcy Hospital appointed Dr. Claude L. Brown, Jr., Consultant Psychiatrist, Dr. James E. Kimbrough, Staff Psychiatrist, and Dr. William H. Rudder, Consultant Psychiatrist, who constitute the undersigned commission. After having the said Thomas W. Whisenhant under our study and observation continually from the date of admission until the present date, we desire to submit the following report:
“After full study and a long period of observation, it is the opinion of each of us separately, and our opinion jointly and collectively, that the said Thomas W. Whisenhant is presently sane and competent to stand trial; knows the difference between right and wrong; can assist counsel in his defense; and can adhere to the right. The condition of Mr. Whisenhant as observed by each examiner individually throughout his hospitalization has remained unchanged from the time of the first examination to the last examination. His behavior as observed by staff has been basically unchanged from the time of admission and has not been aberrant or psychotic. It is our further opinion that it is possible that he lacked adequate control at the time of the commission of the crimes for which he is charged.
“Under the provisions of the acts referred to above, we understand that with the rendering of this report our obligation and that of the Searcy Hospital has been discharged, and therefore, the Court will cause the proper order to be made for the transfer of the said Thomas W. Whisenhant to its jurisdiction and thus relieve the Searcy Hospital of further responsibility in this case. He will be discharged to the Sheriff of your county or such other person with written authority directed to this institution.
“Awaiting your further order or that of the Sheriff of Mobile County, Alabama. “Respectfully submitted,
“Signed and executed this the 24 day of February, 1977, at the Searcy Hospital, Mount Vernon, Alabama.
/s/Claude L. Brown, Jr., Md.
Consultant Psychiatrist /s/James M. Kimbrough, M.D.
Staff Psychiatrist /s/William H. Rudder, M.D.
Consultant Psychiatrist”
Prior to arraignment, on June 16, 1977, the trial court found appellant indigent and appointed Holmes Whiddon, a licensed attorney in Mobile, to represent him. In the presence of Mr. Whiddon and Mr. Morris Dees of Montgomery, who also represented appellant, appellant waived reading of the indictment and entered pleas of not guilty and not guilty by reason of insanity.
The case was put to trial on August 1, 1977, in Jefferson County Circuit Court, appellant’s motion for change of venue having been granted on July 15, 1977. The jury returned a verdict on August 9, 1977, finding appellant guilty of capital murder as charged in the indictment. The trial court adjudged appellant guilty, setting out in a written finding of facts that he found aggravating circumstances to outweigh mitigating circumstances in the case, and sentenced appellant to death during a sentencing hearing on September 7, 1977.
The evidence presented tended to show the following facts:
R.L. testified that he was a resident of Theodore, Alabama, in Mobile County. On October 16, 1976, Mr. L. passed by a small Compact Store at the corner of Nan Gray Davis and Sweedtown Roads, approximately a quarter till ten o’clock that night. Mr. L. identified two photographs of the victim, Cheryl Lynn Payton, as an employee at the Compact Store. On that evening, it was raining heavily and Mr. L. saw Mrs. Payton sweeping water from the store’s “walk way.”
Defense counsel stipulated the photographs depicted Mrs. Payton and stated that he had no objection to them being offered into evidence. These pictures were introduced into evidence.
T.L. testified that he lived on Two Mile Road in Irvington, Alabama, in Mobile County. On October 16,1976, L. and his fiance stopped at the Compact Store on Sweedtown Road, at approximately 8:30 p. m. There he saw Mrs. Payton, whom he identified in the two photographs previously introduced, and bought two cold drinks. L. returned to the store at ten o’clock that evening. At that time, no one was in the store and no vehicles were in the parking lot. L. saw a coke machine open, with the keys in the lock and a broken “six-pack” of Coca-Colas on the floor, with a mop in a bucket nearby. L. then identified four photographs depicting the store, to which defense counsel stated that he had no objection to their being admitted in evidence, and they were admitted. When L. found the store empty, he attempted to use the pay phone outside; however, the receiver was “tore up.” L. also noticed a Miller “pony” inside the phone booth. Using the telephone in the store, L. summoned police and remained at the scene until sheriff’s deputies arrived.
G.R. testified that he was a resident of Spring Hill in Mobile in October of 1976. On Sunday, October 17, 1976, R. and his friend, G.P., were hunting on the land of E.T. in Irvington, Alabama. R. then identified three photographs depicting the area and defense counsel stated that he had no objection to their being introduced in evidence, and they were admitted.
Approximately 6:00 p. m., R. and P. saw a man standing slightly off the roadside, watching them drive towards him. P. called the man over to the car and asked him what he was doing there; to which the man replied, he was “walking around.” Then, thinking that the man was out “night-hunting,” P. told him, “Well, we know what you are doing here.” P. only repeated that statement when the man asked what he meant by that. The man then walked on in the direction of Highway 90.
On the next Monday evening, R. identified the man in a lineup at the Sheriff’s Department. Of the six men in the lineup, R. identified appellant as the man whom he and P. had seen on E.T.’s land the evening before. R. also identified appellant in court as the same man.
G.P. testified that he was a resident of Irvington, Alabama, in Mobile County. P.’s subsequent testimony paralleled that of G.R.
Charles Edwin T., Sr., testified that he lived in Irvington, Alabama, in Mobile County, where he farmed about five thousand acres of land. On a Sunday evening in October, 1976, R. and P. notified T. that they had seen someone on his property. T. drove down to the plot, where the man had been seen, on Monday, October 18, 1976, and parked his car. When T. walked out into the field, he discovered the body of a woman clad only in “knee-high” stockings and a blue denim shirt; there were no cuts on the body. T. then reached his house in five minutes and called “the law,” and met investigating officers at the south end of North Gulf Boulevard ten to fifteen minutes later. When T. returned to the field with two officers, the body was gone; however, “drag marks” were leading away from the spot. T. and the officers followed the marks, discovering the body in a thicket and covered with boards. At this time T. observed cuts on the body; T. identified two photographs depicting the victim. A carton of Miller beer in “pony” bottles was near the victim’s head.
While waiting for the officers at North Gulf Boulevard, T. had seen a white pickup truck on the road. T. identified a photograph depicting a white pickup as being the same vehicle he saw that day. Defense counsel having stated that he had no objection to the photograph, the picture was admitted in evidence. T. described the driver of the truck as having long, curly-like, reddish brown hair, and a “Fu Manchu” moustache. At the trial appellant was clean shaven and his hair was neatly cut.
T. further testified that, after the body was found in the thicket, one officer had gone back to the police vehicle to use the radio. At this time T. saw the same truck coming back down the road. The vehicle stopped, turned around, and “took off real fast.” One officer remained at the scene with T., while the other undertook pursuit of the speeding vehicle. T. identified appellant as the driver of the truck.
On cross-examination, defense counsel introduced into evidence two color photographs of the victim.
Richard Lee Bryars testified that he was a Deputy Sheriff in the Mobile County Sheriff’s Department. On Monday, October 18, 1976, Bryars was organizing a search party of volunteers when Deputy Tillman received a phone call between 10:30 and 10:45 a. m. Bryars and Tillman then proceeded to North Gulf Boulevard in Irvington, Alabama, where they met C.T. Bryars and his partner then followed T. to a field where they subsequently discovered the body. Bryars observed a pool of blood in the spot where T. said he had first seen the body. The body was discovered in Mobile County.
Larry Tillman testified that he was a Detective Sergeant with the Mobile County Sheriff’s Office. On the morning of October 18, 1976, Tillman was assisting in the organization of a search party to locate Cheryl Lynn Payton, who was missing. After receiving a call from Chief Investigator Driggers, Tillman and Bryars met E.T. at the south end of North Gulf Boulevard. The three men traveled down the dirt road approximately one half mile where T. stopped. Subsequently, the body of Cheryl Payton was located.
Tillman then sent a dispatch to the sheriff’s office and while still on the radio saw in his rearview mirror the front end of a pickup truck stopped at the top of a hill a quarter of a mile down the road. When the truck turned around, Tillman pursued it, sending out a dispatch relating his actions. The chase continued at speeds from eighty to one hundred miles per hour until the truck crashed through an electrical fence and wrecked in a clump of woods. The driver of the truck jumped out of the vehicle and ran into the woods. Tillman then identified five photographs of the truck, which were introduced in evidence without objection of defense counsel.
After the truck wrecked, the area was surrounded by twenty police vehicles and Chief Investigator Driggers took charge of the situation. An identification check revealed that the truck was registered to appellant. Tillman sent for appellant’s wife, and when she arrived she spoke to appellant, through a public address system in a police car, asking appellant to come out. Appellant shouted, “Baby, I have done everything they said I did.” Tillman, Driggers, and appellant’s wife walked into the woods then, finding appellant standing unarmed among the trees. Appellant told Tillman, “You S.O.B.’s, I am going to make you kill me.” At that time, Tillman walked up to appellant and handcuffed him and appellant was led out of the woods and placed in a police car.
On cross-examination, Tillman testified that he, District Attorney Graddick and a Mr. Baker began interrogating appellant at the sheriff’s office approximately an hour after he was apprehended. During the interrogation, appellant also admitted he had killed Venora Hyatt, whom he had also abducted from a small convenience store. Defense counsel then introduced in evidence a photograph of that store in which Mrs. Hyatt had worked. Mrs. Hyatt’s body was discovered near the side of an old house covered with kudzu. vines at the intersection of Halls Mill Road and Higgins Road. Defense counsel then introduced into evidence several photographs depicting the scene and the body of Mrs. Hyatt. That murder occurred almost six months to the day before Mrs. Payton was killed.
Before interrogating appellant he was given the Miranda rights and warnings and he responded that he understood his rights. Then began a question and answer session that covers more than forty pages in the transcript. Some time later there was another interview with appellant prior to which he was again given the Miranda rights and warnings. This was another question and answer session which covered numerous pages of the transcript. Both of these interviews were introduced into evidence by appellant’s counsel and read to the jury.
It will serve no useful purpose to set out in full these two confessory statements. It would serve only to overextend this opinion. The entire episode can best be summed up by quoting from the brief of appellant’s counsel:
“On October 16, 1976, the defendant, Thomas Whisenhant, abducted Cheryl Lynn Payton from a Compact Store in Mobile County where she worked as a Clerk. He drove her to a secluded wooded area in rural Mobile County, raped her on the front seat of his pickup truck, and then shot her in the head one time with the 32 pistol he used in the abduction. The murder took place in a field near the truck. He then dragged her body into the wooded area and left the scene.
“On October 17, 1976, he returned to her body, cut off a large section of her breast and slit her abdomen. He was observed near the crime scene and was captured shortly thereafter following a chase.
“Once captured, the defendant freely gave a detailed confession wherein he not only admitted killing and mutilating Mrs. Payton but also killing and mutilating two other women in Mobile County during the previous 18 months. With evidence obtained from the defendant, law enforcement authorities verified the defendant’s multiple-mutilation confession. All three, however, involved extensive sadistic mutilation of dead bodies. All three victims were unknown to the defendant.
“At trial, defendant’s counsel in opening statement readily admitted that the defendant had committed these three murder-mutilations and also told the jury that the defendant, at age thirteen, had killed an elderly woman. He also told the jury that the defendant had been previously tried and convicted of the brutal beating of a woman while he was in the Air Force.”
The officers found a knife lying on the seat of appellant’s pickup truck and it was determined to be the knife that appellant used to mutilate the body of Mrs. Payton. Also in the truck were a pair of jeans, panties and a minipad.
Louis P. Driggers testified that he was the Chief Investigator for the Criminal Investigation Division of the Mobile County Sheriff’s Department. In November of 1975, Driggers had gone to a Compact Store on Cottage Hill and Schillinger’s Road in Mobile, Alabama. There he had found the body of Patricia Hitt, who had been shot in the forehead and killed. On October 18, 1976, Driggers proceeded to the scene of the wreck of appellant’s truck. Driggers’s testimony concerning the apprehension and arrest of appellant is substantially similar to that of Tillman.
Jim Small testified that he was a State Toxicologist and that he had been employed by the State Department of Toxicology for twelve years. Defense counsel stipulated that Small was an expert in his field, and Small’s many qualifications which were still established are not set forth herein.
On October 18, 1976, Small went to the scene of the discovery of Cheryl Lynn Payton’s body where he conducted an examination. Clutched in Mrs. Payton’s hand was some grass similar to that found near bloodstains sixty feet away. Small accounted for this by reason of “cadaveric spasm,” a phenomenon that occurs particularly with head wounds and is commonly seen in cases of suicide by gunshot. The State introduced two photographs depicting that hand of Mrs. Payton clasping grassy material and the hand of Mrs. Wyatt, in which was clutched kudzu vine. Both of these occurrences of “cadaveric spasm” indicated traumatic death.
Upon examination of Cheryl Lynn Payton’s body, Small observed a large circular wound over the left breast where the nipple had been removed; a four-inch cut at the base of the left breast; a cut on the right abdomen; a half-inch cut located on the inner margin of the right thigh; a three-eighths inch cut located in the upper pubic ' region; four cuts inside the external genitalia; two small lacerations on the back of the skull; and a quarter-inch diameter penetrating wound in the top of the head, which Small determined to be an entrance wound from gunshot. Apparently the two small lacerations at the back of the head were caused by the use of some blunt instrument, occurring “before or immediately surrounding the time of being shot.”
Small further testified that he did not find the left nipple at the scene. Additionally, Small took swabs from the victim’s vagina, mouth, anus, and stains noted on the leg and chest area. Florence’s tests resulted in positive results of seminal stains on swabs taken from the vagina. The sper-matazoa were immobile, indicating that they had been deposited for at least ten hours. In Small’s opinion, Mrs. Payton had been penetrated. Small also determined the presence of blood in the crotch area of the jeans and panties, and on the sanitary napkin, all of which were found in appellant’s truck.
Small further testified that he was present at the Mobile Infirmary where Dr. Bryan Montgomery performed an autopsy upon Mrs. Payton’s body. A bullet which was recovered from the brain was determined through ballistics tests to have been fired from a .32 pistol, Smith & Wesson. The bullet, without objection by defense counsel to its admission, was received in evidence. Defense counsel further stipulated that Mrs. Payton’s death was caused by the pistol and caused by appellant. The knife found in appellant’s truck had no blood or tissue on it. No fingerprints could be raised from the beer carton found near Mrs. Payton’s head.
D.P. testified that he lived in Theodore, Alabama, and that his wife was Cheryl Lynn Payton, who was twenty-four years old at the time of her death. On October 20, 1976, Payton last saw his wife alive when he dropped her off at work at the store at approximately ten minutes before 3 o’clock in the afternoon. On that day Mrs. Payton was in her menstrual period and was wearing a sanitary napkin of the type admitted in evidence. Prior to dropping his wife off at the Compact Store on October 16, 1976, Mr. P. last had intercourse with his wife two days before. Payton then identified a photograph as depicting his wife. The State rested at this point.
E.S., appellant’s sister, was called as the first defense witness. Mrs. S. testified that appellant had lived in Theodore, Alabama, but had moved to Irvington after he married. There were two older brothers in the Whisenhant family; appellant was the youngest child. Appellant and his family were born and reared in Prichard, Alabama, where their mother still occupied the same house. When their father was alive, he was an electrician and worked at various shipyards in Mobile.
When appellant was born he was very small. His mother kept him in her bedroom, where he slept with her until he was six years old. Appellant continued to sleep in his mother’s bedroom, until he was sixteen, in a separate bed. Appellant’s father shared a room with his daughter, E., (now Mrs. S.) where they had separate beds. After appellant was bom, she would hear her father go into her mother’s room at night. Then she would hear her mother “holler, and she would say, ‘Willie, go back to bed. Leave me alone. I told you to leave me alone.’ ” All money earned by the Whisenhant family was turned over to the mother. Mr. and Mrs. Whisenhant often fought and when this occurred, Mrs. Whisenhant encouraged appellant and his sister to hit their father. Their mother convinced appellant and his sister that their father kept them from “having anything because he drinks all the time.”
Mrs. S. further testified that appellant had convulsions one night when he was a baby. The family thought appellant had died, but he later revived. About the time appellant began school, his mother was working at Kress’s; after school appellant was kept by his grandmother, whom Mrs. S. described as a domineering woman who would stand appellant in a corner and whip him for no reason.
In high school appellant never “dated,” except once, when he attended the senior prom. Appellant’s mother kept any money that appellant earned and would not let him out of her sight. After appellant got a driver’s license, his mother would go buy gas with him.
Generally, as a child, appellant had a mild disposition, often just sitting and staring. As he grew older, however, appellant could become violent when his requests were not granted. Mrs. S. saw appellant grab their mother by the arm several times. Appellant also began to get in trouble, being suspected of killing a woman, ravishing a girl, and purse snatching.
R.N., the minister at the church which the Whisenhants attended, told the family that the appellant was in need of psychiatric help. However, one of the appellant’s older brothers angrily claimed that the police were “trying to blame something on an innocent boy.”
On October 16,1976, appellant’s little girl was a year old and he called Mrs. S. to invite her to a birthday party. At the party appellant appeared to be the “happiest [Mrs. S.] had ever seen him in a long time.”
James H. Bryant testified that he was a retired captain of the Prichard Police Department. While he was a detective on the force, Bryant knew the Whisenhants, particularly appellant, well. Bryant first encountered appellant over a purse snatching charge. Subsequently, Bryant picked appellant up on a murder charge. An elderly lady, seventy years old, who lived on the same street as did appellant, was shot and killed early one evening. Earlier a pistol had been stolen from a house down the street where appellant had been spending some time with teen-aged friends. Bloodhounds led Bryant to the Whisenhant home; however, appellant’s family claimed that he had been home all evening. Bryant came to regard appellant as a “weirdo,” and it “passed through [his] mind” that appellant had something against women. Bryant told Mrs. Whisenhant and E.S. that appellant needed psychiatric help and “they had better get him straightened up.” Appellant’s family responded by getting angry and saying appellant was not crazy.
At a much later time, appellant’s wife came to Bryant and told him that appellant had told her he wanted to play a game with her to prove he could outsmart police. Then appellant placed a stocking around her neck and choked her till she blacked out, after he had persuaded her to write and sign a suicide note. Bryant told appellant he had “better straighten up.”
On cross-examination, Bryant testified that before the elderly woman was killed appellant and his friends had been playing with the pistol which had been stolen prior thereto. Appellant had taken a bullet from the revolver, marked an “X” on it, and said, “This bullet is going to kill somebody.”
Claude Brown testified that he was a psychiatrist who had practiced in Mobile County for twenty-six years. Brown graduated from Tulane Medical School in 1945 and spent three years specializing in psychiatry at the Menninger Foundation in Topeka, Kansas. Concurrently, Brown was an associate professor at the University of South Alabama Medical School in the Psychiatry Department. Brown further testified to membership in numerous professional organizations and that he was certified by the American Speciality Board of Psychiatry and Neurology. Brown’s articles on psychiatry have appeared in approximately one dozen professional journals. Additionally, Brown listed many other duties and activities he had undertaken in the field of psychiatry which are too numerous to list here.
Brown became involved in appellant’s case when appellant was ordered to Searcy Hospital for psychiatric examination and evaluation. Brown and two other psychiatrists, Kimbrough and Rudder, were appointed by Dr. J. E. Condom, the Superintendent of Searcy Hospital, to form a lunacy commission to thoroughly evaluate appellant.
On three occasions, Brown interviewed appellant at Searcy. Additionally, Brown reviewed available records concerning appellant, which included police statements, photographs relating to the murders, military service records, records of imprisonment, and social service reports of interviews with the Whisenhant family by social workers. These records were supplemented by psychology reports, further social work data, and reports of day-to-day contact with appellant from on-ward aides. In total, Brown spent thirty hours, approximately, evaluating appellant. Four of those hours were spent in actual interviews with appellant. Subsequent to appellant’s leaving Searcy Hospital, Brown saw him again for one hour at the Mobile County Jail.
In summary, Brown testified that appellant was aware of the murders that he had committed and that they occurred when appellant was not under the influence of any drugs or in an impaired state of consciousness. However, appellant had no idea why he was doing such things. Appellant consistently expressed anxiety about his family and a desire to see his wife and child.
Appellant was reared in a home that was a “markedly abnormal one.” His home was one in which women “ran the show,” particularly his mother, who was the dominant figure in the Whisenhant family. Appellant’s father was a “nonentity”, denigrated, “cast down and cast out, literally as well as figuratively.” Brown viewed the father as a non-existent functional male model. Appellant viewed himself as receiving the same treatment as did his father, that is, the subject of contempt, denigration, and being a nonentity.
As appellant grew up, he was by all accounts a shy, relatively reserved person, who had few friends; he had no girl friends. Appellant “remained extensively dominated by Mother,” and was “early in trouble.”
Brown described the purse-snatching episodes as more than simple robbery, being “aggressive ripping away something valuable of a woman’s.” Brown considered this an ominous symptom and then recounted appellant’s unprovoked assault upon a WAF when appellant was in the Air Force. For this appellant remained in a penitentiary for seven years, where on one occasion he threatened a female teacher in one of the prison’s scholastic programs.
At one point, appellant related to Brown that when he was approximately twelve years old he was assaulted by two older girls. These girls threatened to castrate appellant if he did not have intercourse with them. While Brown did not consider this incident to be the definitive source of appellant’s problem, he did think that appellant’s relation of the story “adds to and conforms to him his picture of the world.”
Appellant also told Brown that he had not had sexual relations prior to his marriage and that his sexual relations with his wife were good. However, appellant’s wife had become fearful of him following the episode with the suicide note and strangulation.
Shortly before the birth of his first child, appellant purchased a pistol, fearing that his wife might be assaulted while he was away at work. Following the birth of the child, appellant became preoccupied, complaining of “very vague physical pains,” and saying that his “head didn’t feel like it was there at times.” Appellant also had little interest in sexual relations with his wife and their relationship “became more aloof.”
Brown considered the timing of the murders of the three women to be in specific reference to appellant’s wife’s giving birth to the first child. The first murder occurred approximately six weeks after the birth of the child; the second in the same month that his wife told him she was pregnant again; and the third on the night of his first child’s first birthday.
Further, Brown emphasized the repetitive patterns of attacks of increasing violence against women since appellant was fourteen years of age. Appellant’s development as a child was abnormal, rooted in a miserable relationship with his mother. Brown considered that each murdered woman represented to appellant a direct, unconscious substitute for his mother. The lack of a proper male model in the Whisenhant family prevented appellant from growing away from the dependence fixation upon his mother. Appellant became a person intensely fearful of the world at large. The purpose of the murders, Brown concluded, was to prevent what appellant perceived to be his own destruction, a fear of which was kindled by his own wife’s pregnancy and childbirth.
Brown further explained the purpose for the mutilation of the bodies of the last two victims, saying that the answer lay at several levels. The amputation of the breasts, the cutting of the vagina, and slitting of the stomach amounted to removal of gender identification; that is, appellant made his victims “not female anymore.” On another level the mutilations represented an infantile, regressive desire to be a part of the female body again.
As to a diagnosis of appellant’s “disease,” Brown classified appellant as a “severe schizoid personality with marked paranoid traits, with the traits of necrosadism; that is, the sadistic destructive act with bodies that are dead.” In Brown’s opinion, appellant was afflicted with a mental disease. Appellant knew right from wrong; however, when he killed Cheryl Lynn Payton, he had so lost the power to select right from wrong, because of duress of that mental disease, that his ability to prevent himself from killing her was destroyed.
On cross-examination, Brown testified that he knew of no treatment program with any reasonable expectation of helping appellant. If appellant had not been apprehended after Mrs. Payton was killed, Brown testified, it was probable that he would have become more violent and committed more murders in a shorter period of time.
Dr. Brown’s testimony concluded the case for the defense, and the defense rested. The State then proceeded to produce evidence in rebuttal.
D.W. testified that he was employed as a shipfitter at Ingall’s Shipbuilding in Pascagoula, Mississippi. Appellant worked in W.’s crew at the yard over a two-year period. When appellant was arrested, W. believed appellant incapable of such acts, appellant having appeared normal to him. In W.’s opinion, appellant was not insane.
W.’s testimony was followed by that of four other of appellant’s co-workers. Each had never observed appellant act abnormally and thought he was sane.
M.R. testified that she and her husband lived in Irvington, Alabama, where they knew appellant and his wife and had visited in their home. Mrs. R. considered the Whisenhants to be a very happy couple and never knew appellant to act abnormally. J.R., who also testified, shared his wife’s opinion.
K.B. testified that she and her husband were appellant’s and his wife’s closest friends, often visiting each other on social occasions. Mrs. Brannon thought that the Whisenhants’s marriage was a good one, though appellant and his wife argued a little. Appellant never appeared to be insane, deranged, or high tempered to Mrs. B. -On October 16, 1976, Mr. and Mrs. B. attended appellant’s daughter’s birthday party where appellant appeared to be as he usually was.
J.B., K.’s husband, who also testified, shared his wife’s opinion of appellant. B. further identified a .32 caliber pistol as a weapon that he had sold to appellant before his first child was born. B. also identified the knife in evidence as being of the kind that appellant carried.
Preston Arthur testified that he had been a United States Probation and Parole Officer for two years, assigned to the Mobile Division. Appellant’s was one of the cases Arthur was assigned to supervise, and appellant reported to Arthur monthly. In Arthur’s opinion, appellant was no different from any other twenty-nine year old criminal.
Henry Frank Skinner testified that he worked as a general practitioner of medicine at Searcy Hospital. Skinner ran a physical examination of appellant on the day after his admission to Searcy and found no physical problems. In his opinion appellant was sane.
Elvin Harper testified that he worked as an aide at Searcy Hospital and that he had had opportunities on a daily basis to observe appellant and carry on conversations with him. Harper considered appellant to be a sane man.
W. D. Little testified that he was a security officer at Searcy Hospital where he had observed appellant on a daily basis. Appellant appeared sane to Little.
James Edward Kimbrough testified that he was a psychiatrist and Assistant Superintendent at Searcy Hospital. Kimbrough finished medical school at the University of Alabama in 1952 and interned at the University Hospital in Birmingham, Alabama. Afterwards, Kimbrough engaged in general practice for seventeen years until he was trained in psychiatry at University Hospital, beginning in 1971. Kimbrough then taught at the University of Alabama in Tuscaloosa in the College of Community Health Sciences to residents in Family Practice.
Kimbrough saw appellant for approximately five hours on four or five separate occasions. Additionally, Kimbrough reviewed appellant’s case history ten to twelve hours. Kimbrough, agreeing with Rudder and Brown, diagnosed appellant as a schizoid personality with paranoid, necro-sadistic features and episodic discontrol.
In discussing the appellant’s development, Kimbrough would not forward any thesis as to the nature of the purse-snatching incidents, saying that he did not have sufficient information to make such a judgment. Kimbrough did testify that a chaotic childhood, coupled with fear and some helplessness on the part of the purse-snatching victim, would make appellant aware of needs which had gone unmet, that is, need of an outlet of hostilities and seeing someone controlled. Appellant did not remember these episodes when interviewed by Kimbrough.
Kimbrough would not comment on Brown’s psychiatric theory of appellant’s case. However, Kimbrough agreed that in a person of abnormal personality development the circumstances of appellant’s wife’s pregnancy would be the addition of another stressful situation, from a standpoint of physical and financial needs.
Kimbrough further testified that appellant did not have a diseased brain. Nor was appellant a schizophrenic, though he exhibited characteristics of a schizoid personality.
Further, Kimbrough did not know whether appellant knew right from wrong at the time he murdered Cheryl Lynn Payton. However, in Kimbrough’s opinion, appellant possessed the type of external control which would cause appellant to run away from a situation in which he could be “caught.”
Additional opinions of Kimbrough concerning appellant’s responsibility for his acts are set out below:
“Q. Okay. We’ll go over this, Doctor. ‘If he did have such knowledge,’ — That’s referring to whether he knew right right from wrong—
“THE COURT: Did you show him the question?
“MR. HALE: Yes, sir.
“THE COURT: Go ahead.
“Q. ‘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.’ Do you understand the question?
“A. Now, you’re talking about at the time of the murder?
“Q. Right.
“A. That’s the question I don’t know the answer to because this mutilization in a necrosadism, all of this cutting and amputating parts and evisceration, is a very pathologic thing to me. Now—
“Q. To you?
“A. Yes. And killing may be necessary to do this because, I think, the fantasies most of the time in necrosadism that somehow this person can still feel the shame, the humiliation, the pain and all of this. And I think this is unreal. “Q. Well—
“A. But now—
“Q. What about — I’m not talking about the time—
“MR. DEES: Let him finish.
“MR. HALE: Oh, okay, I’m sorry.
“THE WITNESS: Now, whether or not he could make a rational decision to kill this person to accomplish this pathological mutilation, I don’t know.”
On cross-examination, Kimbrough testified that appellant’s “anger” was focused on women, though possibly not limited to them. Appellant’s “control” of his acts extended to picking time, place, victim, and method of killing. Appellant would “kill again if set free,” Kimbrough concluded.
Kimbrough on recross and redirect examination explained that appellant’s schizoid personality, etc., was a mental disorder, not a disease. Upon seeing appellant in a last interview, Kimbrough opined that appellant was sane and appreciated the consequences of his acts.
Noble Wayne Harrison testified that he was a staff psychologist at Searcy Hospital. Harrison’s training included a Bachelor’s Degree in Psychology from Southern Illinois University; a Masters Degree in Clinical Psychology from Xavier University; a Doctorate in Counseling Psychology from the University of Mississippi; attendance at various seminars; membership in the American Psychological Association; and membership in the Association for Advancement of Behavior Therapy.
Harrison testified that he interviewed appellant at Searcy Hospital approximately twenty to twenty-two hours over a four-month period, describing him as a man of average intelligence with shrewd and cunning attributes. In his opinion, Harrison testified, appellant exercised “adequate control” at the time he killed Mrs. Payton, was rational, and appreciated the consequences of his acts. Appellant knew that he was doing wrong.
William H. Rudder testified that he was a psychiatrist in private practice in Mobile. Rudder graduated from the University of Alabama Medical School in Birmingham and then went into general practice, after interning at City Hospital in Mobile. Subsequently Rudder completed a three-year residency in psychiatry at the medical school in Birmingham. Rudder performed duties as a consultant in psychiatry in all hospitals in the Mobile area, including Searcy-
Rudder was one of the three psychiatrists appointed to the “lunacy commission” to evaluate appellant. In total, Rudder reviewed appellant’s case seventy-five to a hundred hours, approximately ten of which were spent in personal interviews. At these times Rudder regarded appellant as “completely coherent.”
Rudder further testified that appellant was not atypical, having observed many other persons with similar backgrounds. When appellant killed Mrs. Payton, Rudder testified, he knew the difference between right and wrong and appreciated the consequences of his acts. In short, Rudder formed the opinion that appellant was sane at that time. However, when asked whether or not the mutilations of the victims’ bodies were psychotic acts, Rudder replied:
“A. In this part of the world, here and now, most anybody would say that it looks, acts and is crazy, is insane. It’s just that simple.”
Whether or not there was a connection between appellant’s killing the victims and mutilating them, Rudder testified that only appellant might know.
On cross-examination, Rudder testified about a pretrial interview, held with defense counsel. From the record:
“Q. You can. Doctor, I just have one final question. If your opinion has changed today, well, maybe it’s changed. In my interview with you I asked you the question, ‘You don’t know, you have no opinion either way, that he was or was not medically insane at the time he committed the crime?’ And what was your answer?
“A. Okay.
“Q. Just what was your answer then?
“A. Okay. Could I tell you something?
“Q. Well, could you read your answer first, and then tell me anything you want to. I asked you the question whether you had no opinion whether he was medically insane. What was your answer? Just read it to the jury.
“A. What you háve written down there underscored in red says, T don’t know. I do not know.’
“Q. Read the rest of it.
“A. I said, T don’t think anybody knows. I think you can get as many theories as you can round up psychiatrists, but — ’ And then you cut me off.
“Q. All right. I said now, ‘So, if you’re on the stand you can’t testify for him or against him. In effect, you can’t say that he didn’t know what he was doing.’ And what was your answer?
“A. Let me see now. Where are you now?
“Q. The very last page.
“A. Well—
“Q. Doctor, wasn’t your answer, ‘In effect, you can’t say he knew what he was doing, and you can’t say that he did not know what he was doing.’ And your answer was, ‘No, I don’t know.’
“A. You asked me what my answer was. Now, I’ll tell you the same thing it probably says on that. No, I don’t know, until I look at it and see. That’s the last page?
“Q. Yes, sir. There are the last few lines. ‘So, if you’re on the stand, you can’t testify for him or against him. In effect, you can’t say he knew what he was doing, and you can’t say that he did not know what he was doing.’
“A. Yes. Now, what was your—
“Q. Question?
“A. Un-huh. (Indicating yes.)
“Q. ‘So, if you’re on the stand, you can’t testify for him or against him. In effect, you can’t say that he knew what he was doing, and you can’t say that he didn’t know what he was doing.’ Just read your answer.
“Q. All right. You said that — You asked me if I — You said, ‘You cannot say that he did not know what he was doing.’ That’s a double negative. What does that mean?
“Q. Sir, just read what your answer was.
“A. Well, you asked me, you said, ‘You can’t or you cannot say that he didn’t or did not know what he was doing.’ You have a double negative. What does that mean?
“Q. Do you think there was some doubt about what we were talking about?
“A. I think he was—
“Q. Well, let’s just read your answer and go right on to the next question then. What was your answer?
“A. Well—
“Q. Just read your answer, sir.
“A. On mine or yours?
“Q. They should be the same. That’s it right there, Doctor. (Indicating.) Just read that.
“A. I said, ‘No, I don’t know.’ ”
Rudder further testified on direct that appellant’s diagnosis was a personality disorder. Additionally, Rudder had no doubt that appellant would kill again “if he gets out.” Rudder then concluded that appellant was sane when he killed Mrs. Payton.
Virupaksha Kothandapani testified that he was a native of India; however, he had lived in the United States for the last ten years. Kothandapani was an assistant at Franklin College, Indiana until 1975. Kothandapani’s numerous other qualifications, publications and honors are omitted.
While appellant was at Searcy, Kothandapani performed eleven evaluative tests upon him and conducted approximately twenty hours of interviews with him. The tests showed appellant to be of normal intelligence with good abstractive ability. However, appellant also was having a certain amount of emotional instability, feeling that he was a “victim,” and very defensive.
Kothandapani explained that appellant’s diagnosis would be classified as a personality disorder. In summary, Kothandapani testified that it was highly probable that appellant knew right from wrong at the time he killed Mrs. Payton and it was highly probable that he was sane.
Kothandapani’s testimony concluded the evidence in the case.
Appellant first contends that the Alabama capital sentencing procedures are vio-lative of the Eighth and Fourteenth Amendments to the Constitution of the United States because they fail to provide a reliable process for determining that death is the appropriate punishment in a particular case. Discussion of this question is pre-termitted since our Supreme Court has affirmed the constitutionality of Acts of Alabama 1975, No. 213, §§ 1 et seq. [now Code of Alabama 1975, §§ 13-11-1 et seq.] in Jacobs v. State (Ex parte Jacobs), Ala., 361 So.2d 640, released May 19, 1978.
Also appellant argues that Alabama’s capital sentencing procedures are faulty in that the trial judge is limited to consideration of mitigating circumstances enumerated by the statute, thus violating the Eighth and Fourteenth Amendments to the Constitution of the United States. Again, no discussion of this question is warranted. Our Supreme Court held in denying Jacobs’s motion for rehearing that §§ 13-11-1 et seq., supra, comport with the decision of the United States Court in Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973.
Next, appellant contends that the trial court erred in failing to find the presence of any mitigating circumstances following.evidence presented in the post-verdict sentencing hearing. A summary of that evidence and the trial court’s written findings of fact to support the imposition of the death penalty are set out below.
State’s Evidence
William H. Rudder testified that he was a psychiatrist in private practice in Mobile and that he had testified in the trial of this case during the week of August 10, 1977. Rudder summarized his testimony given at trial and further testified appellant was not under duress of extreme emotional disturbance at the time he raped and killed Mrs. Payton.
Virupaksha Kothandapani also summarized his testimony at trial. Kothandapani agreed with Rudder that appellant was not influenced by extreme mental or emotional disturbance at the time he committed the offense.
James H. Bryant, the retired Captain of Police from Prichard, Alabama, who testified at trial about appellant’s early criminal history, recounted an incident committed by appellant when he was under sixteen years of age. Appellant had held three young girls at gunpoint, forced them to undress and had taken money from them. To his knowledge, Bryant testified, appellant had knowingly created a great risk of death to many persons.
Through Preston Leon Arthur, appellant’s federal parole officer, records of appellant’s general court martial for assault with intent to murder and disposition were admitted in evidence.
Defense’s Evidence
Appellant introduced into evidence a report from Dr. Emanuel Tanay concerning appellant’s mental condition. In summary, the report diagnosed appellant as a chronic schizophrenic and declared that, “there can be little doubt that Mr. Whisenhant ‘lost the power to select the right and to avoid doing the act’... ” which was solely the product of the diagnosed mental illness.
Hans Zeisel testified that he was a Professor Emeritus of Law and Sociology at the University of Chicago. A list of Zeisel’s publications was introduced into evidence. Zeisel had familiarized himself with appellant’s case and stated that in his opinion the death penalty was not justifiable in that the perpetrator of a crime of this nature is most unlikely to be deterred by knowledge or fear of the penalty.
Appellant’s wife and sister then appealed to the trial court to have mercy on appellant.
The Trial Court’s Findings
Following the taking of testimony and argument by counsel, the trial court sentenced appellant to death and returned the following written findings of fact to sup-, port the imposition of sentence.
“The Court, having conducted a Hearing pursuant to Title 15, Section 342(5) of the Code of Alabama, to determine whether or not the Court will sentence Mr. Thomas Warren Whisenhant to death or to life imprisonment without parole, and the Court having considered the evidence presented at the trial and at said sentencing hearing; the Court makes the following findings of fact:
“The court first considers the aggravating circumstances as described in Title 15, Section 342(8):
“(a) The Court finds that the Capital Felony was committed by Thomas Warren Whisenhant while he was under sentence of imprisonment, although he was serving the latter part of his sentence on parole at the time.
“(b) The Court finds no evidence that Mr. Whisenhant was previously convicted of another Capital Felony. However, the Court finds that the aforementioned sentence of imprisonment was a felony involving the use of violence to the person. And, in addition thereto, the Court finds convincing evidence that Mr. Whisenhant murdered three other women, other than Cheryl Lynn Payton.
“(c) The Court finds that other than that set out above in subparagraph (b) there is no creditable evidence that the defendant did knowingly create a risk of death to other persons. However, the evidence is overwhelming that the only reason being that he was apprehended. And, the Court finds from the uncontradicted evidence that if the defendant were returned to a free society that he would kill again.
“(d) The Court finds that the Capital Felony was committed shortly after the defendant raped the deceased, Cheryl Lynn Payton.
“(e) The Court finds that the Capital Felony was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody. “(f) The Court finds that the Capital Felony was not committed for pecuniary gain, within the meaning of Section 342(8)(f).
“(g) The Court finds the Capital Felony was not committed to disrupt or hinder the lawful exercise of any governmental function or the enforcement of laws. “(h) The Court finds the Capital Felony of Cheryl Lynn Payton was especially heinous, atrocious or cruel. The defendant with precise intent and design abducted the deceased from her employment at the compact store, and then drove her to a secluded area in Mobile County, Alabama, and while raining outside of his vehicle, forced her to disrobe and raped her. The defendant then by forcejead the deceased to a wet wooded area adjacent to his parked vehicle and shot her through the head while she was begging for her life. The medical testimony revealed the deceased’s death as being extremely painful and cruel. As the Court has stated, it is the personal opinion of this Court that the Capital Felony was especially heinous or atrocious, but the Court has little precedent or authority which would allow it to hold as a matter of law, that this Capital Felony meets the test of being especially heinous or atrocious or cruel as set out in Section 342(8)(h). However, in the case of State v. Dixon, 283 So.2d 1, the Supreme Court of Florida speaking to this point of especially heinous, atrocious or cruel said:
“ ‘... Again, we feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others.. .’
“If this be the legal test on this point, then this Court is lead to no other conclusion from the evidence than the Capital Felony was especially heinous, atrocious or cruel, and the Court so finds.
“The Court now considers mitigating circumstances as described and set out in Section 342(9):
“(a) The Court finds that Mr. Whisenhant has a significant history of prior criminal activity.
“(b) The Court finds that the Capital Felony itself was not committed while Mr. Whisenhant was under the influence of extreme mental or emotional disturbance.
“(c) The Court finds that the victim was not a participant in Mr. Whisenhant’s conduct, and did not consent to the act.
“(d) The Court finds that Mr. Whisenhant was not an accomplice in the Capital Felony committed, but was, in fact, the principal who fired the shot causing the death of Cheryl Lynn Payton, deceased.
“(e) The Court finds that Mr. Whisenhant did not act under extreme duress or under the substantial domination of another person.
“(f) The Court finds that the capacity of Mr. Whisenhant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired.
“The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating and mitigating circumstances, it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the Jury should be and is hereby accepted.
“It is therefore considered and adjudged by the Court that Thomas Warren Whisenhant, is guilty of the Capital Felony charged in the indictment, and specifically of raping and intentionally killing of Cheryl Lynn Payton, deceased. It is therefore ordered and adjudged that you, Thomas Warren Whisenhant, suffer death by electrocution at any time before the hour of sunrise on the 7th day of December, 1977, inside the walls of the William C. Holman Unit of the Prison System at Atmore, Alabama, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution.
“It is therefore further ordered and adjudged by the Court that the Warden of William C. Holman Unit of the Prison System at Atmore, or in case of his death, disability, or absence his Deputy, or in the event of the death, disability, or absence of both the Warden and his Deputy, the person appointed by the Commissioner of Corrections, at any time before the hour of sunrise shall on the 7th day of December, 1977, inside the walls of the William C. Holman Unit of the Prison System at Atmore, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution, cause to pass through the body of the said Thomas Warren Whisenhant, a current of electricity of sufficient intensity to cause his death, and the continuance application of such current through the body of the said Thomas Warren Whisenhant, until the said Thomas Warren Whisenhant, be dead, and may Almighty God have mercy on Your Soul.
“Ordered this the 7th day of September, 1977.
/s/Ferrill D. McRae, Circuit Judge Thirteenth Judicial Circuit State of Alabama”
Appellant’s argument centers on the trial court’s failure to find that the offense was “committed while the defendant was under the influence of extreme mental or emotional disturbance.” Section 13-11-7(2), Code of Alabama, 1975. Appellant insists that such indeed was the ease and that the trial judge was manifestly wrong in not finding this factor to exist.
Appellant points out that the mitigating circumstances in issue may be based on evidence of a lesser standard than is necessary to find insanity. In State v. Dixon, Fla., 283 So.2d 1, we find the following language:
“Extreme mental or emotional disturbance is a second mitigating consideration, pursuant to Fla.Stat. § 921.141(7)(b), F.S.A., which is easily interpreted as less than insanity but more than the emotions of an average man, however, inflamed.”
* * * * * *
“Mental disturbance which interferes with but does not obviate the defendant’s knowledge of right and wrong may also be considered as a mitigating circumstance. Fla.Stat. § 921.141(7)(f), F.S.A. Like subsection (b), this circumstance is provided to protect that person who, while legally answerable for his actions, may be deserving of some mitigation of sentence because of his mental state.”
However, after a review of the evidence presented at the hearing, it cannot be said that the trial court was wrong in its findings. The evidence presented by the State was ample to negate the presence of this mitigating circumstance.
Prior to trial, appellant moved that the Court allow no death qualification questions be asked of the venire, since such questioning would bias the jury in favor of conviction. Appellant presented the testimony of Dr. George Jurow, whose study, New Data on the Effect of a Death Qualified Jury on the Guilt Determination Process, 48 Harvard L.R. 567, concludes that a death qualified jury is more prone to convict than a non-death qualified jury. Appellant contends that such jury qualification thus denies his right to an impartial trial under the Sixth and Fourteenth Amendments to the Constitution of the United States.
This Court has continued to follow the tenet of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776. See Jacobs v. State, Ala.Cr.App., 361 So.2d 607, 625, cert. denied, Ala., 361 So.2d 640. The trial court was correct in denying appellant’s motion.
Prior to trial appellant moved that he be provided funds in order to employ experts to aid in the preparation of his defense. In particular appellant desired to employ a forensic psychiatrist, Dr. Emanuel Tanay, mentioned above. At one point, the trial court ordered that appellant be given three hundred dollars toward this purpose. However, the order was subsequently denied. Appellant now insists that, because he was unable to employ the experts he desired, “the State was able to overwhelm [his] insanity defense.” Appellant asserts that this action violated his right to due process as guaranteed by the Fourteenth Amendment to the Constitution of the United States.
Such assertions have been addressed by this Court before. In Johnson v. State, Ala.Cr.App., 335 So.2d 663, cert. denied, Ala., 335 So.2d 678, we find the following language:
“Appellant claims the denial of funds to pay defense expenses for investigators and assistance of experts amounts to a denial of equal protection of the law. “In Tillis v. State, 292 Ala. 521, at p. 525, 296 So.2d 892, at p. 895, our Supreme Court stated:
“ ‘The defendant makes the argument that because of his indigency, he was not able to adequately investigate or procure witnesses in his defense, and the State does not award sufficient funds to pay an attorney and do those things, too. To be sure an indigent defendant is in a difficult position. This question has been raised before. Wheeler v. State, 47 Ala. App. 457, 256 So.2d 197 (1971). While some provisions are made for this in the federal system, it is not the present situation in this State... ’
“Title 18, § 3006A(e), U.S.C.A., provides financial assistance to indigent defendants to obtain investigative, expert or other services necessary for adequate defense. Other states, such as California provide for such assistance, however, the Alabama legislature has not enacted such a statute in this state. As stated in Harris v. State, supra, ‘Appellant was not denied due process where the state did not provide funds for the employment of a special investigator to aid him in procuring witnesses in his defense... ’”
As previously noted the venue of this ease was changed from Mobile to Jefferson County, where it was tried in Birmingham. The striking of juries in Jefferson is governed by Acts of Alabama 1955, 2nd Ex. Sess., p. 166, which provides for a one-for-one striking of jurors in counties with populations of more than 400,000. This provision has been held constitutional because it is reasonably related to conditions which exist in Jefferson County. Liptroth v. State, Ala.Cr.App., 335 So.2d 683, cert. denied Ala., 335 So.2d 688.
Prior to trial defense counsel filed the following motion:
“DEFENDANT’S MOTION TO RETAIN HIS TWO FOR ONE JURY STRIKING PRIVILEGE
“Comes the defendant and moves the Court to allow the defendant two jury strikes for each one strike allowed the prosecution as provided for by law for every county except Jefferson. The defendant sets forth the following grounds in support of his motion:
“1. The defendant sought a change of venue from Mobile County because of the pretrial publicity generated by the District Attorney and Sheriff of Mobile. Without the generation of this publicity, the defendant’s fair trial rights would not have been jeopardized and he would not have sought a change of venue.
“2. In the original venue, Mobile County, the defendant is entitled to have two jury strikes for every one by the state. “3. In Jefferson County, a defendant is permitted only one strike per state strike. “4. Had the trial been moved to any other county, the defendant would have retained the two to one strike ratio. “5. If the defendant is not permitted to retain this two for one strike ratio, then this Court is permitting the District Attorney to benefit from the misconduct which resulted in the granting of the change of venue.
“6. Since this case is being transferred from Mobile County, since the indictment was returned in Mobile County and since the Judge and the District Attorney are from Mobile County, the two for one strike law in effect in Mobile County should apply to this case.
“7. If the two for one strike law is not applied in this case then the trial judge’s decision to move this case to Jefferson County will be so arbitrary as to violate the defendant’s right to due process of law as guaranteed by the Fourteenth Amendment to the United States Constitution.
“8. Further the statutory provision applying only to Jefferson County which restricts the number of defense strikes to one for every prosecution strike, violates the defendant’s right to due process and equal protection of the law as guaranteed by the Fourteenth Amendment to the United States Constitution in that other capital offenders tried in Alabama’s sixty-six remaining counties receive two strikes for each one by the prosecution.”
Following a hearing on the motion, the trial court ruled that the one-for-one strike law would be utilized for selecting the jury.
Appellant now contends that applying this law to his case was a denial of equal protection of the law. He notes that all substantial contacts of the case lie in Mobile County; thus application of the strikes law results in an arbitrary distinction. Appellant does admit the constitutionality of the act as applied in Jefferson County.
We believe that the one-for-one strike law was appropriately applied in the case at bar. The Alabama law on change of venue would seem to take into consideration the situation which has arisen here. When an order for removal on a motion for change of venue is made, the jurisdiction of the transferring county ceases and the jurisdiction of the court to which the case is moved commences. Ex parte Lancaster, 206 Ala. 60, 89 So. 721.
Although appellant’s case was completely a “Mobile” case in origin and nature, it was tried in Jefferson County, where special circumstances of greater population and higher crime rates comprise the rationale for the statute in question. Dixon v. State, 27 Ala.App. 64, 167 So. 340, cert. denied, 232 Ala. 150, 167 So. 349. The legislative policy which led to the one-for-one strike law applied in Jefferson County remains as cogent and compelling whether applied to a Jefferson County resident tried in that county or a Mobile County resident whose case is transferred to that jurisdiction. Thus it cannot be said that the statute in question was arbitrarily or capriciously applied to appellant; and no error resulted from its application.
The sole question to be determined by the jury from the evidence in this case was whether or not appellant was sane at the time of the offense. Defense counsel, as noted in the facts, stipulated that appellant did kill Mrs. Payton. Appellant contends that the prosecutor made certain remarks during closing argument, informing the jury of the consequences of returning a verdict of not guilty by reason of insanity, which resulted in reversible error.
To set the problem in proper perspective, it is necessary to document certain occurrences before and during trial in addition to the remarks alleged to have been improper.
Prior to trial defense counsel filed the following “Motion in Limine.”
“MOTION IN LIMINE
“Comes the defendant and moves this Court for an order prohibiting the prosecutor during the course of the jury voir dire and trial from making any reference, directly or indirectly, to any of the following matters, separately or severally: “(a) References to the fact that the defendant, if found legally insane by the jury, could be released at some subsequent point in time.
“(b) References to the fact that the defendant, if given a sentence less than death, could be released at some subsequent point in time.
“(c) References to the fact that if the defendant is found not guilty by reason of insanity at the time the offense was committed but is found presently sane, that the defendant would not be incarcerated but would be legally free.
“(d) References to the fact that the defendant was incarcerated previously and after his release he committed further crimes and that the jury should vote guilty and impose the death sentence to insure that the defendant will not be released upon the public.
“The defendant lists the following grounds in support of his motion:
“1. The defendant is charged with a serious offense that could result in the death penalty.
“2. Evidence or comments of the matters set out above have no probative value of guilt and would be inadmissible if offered into evidence.
“3. Because of the potentially damaging nature of said remarks, it would be of little use to object to them during trial or to have the Court attempt to erase them from the jury’s mind with a cautionary instruction.
“4. The Court has denied the right of individual sequestered jury voir dire and any such remarks made to one or more jurors would be heard by all jurors in the courtroom. Once made, it would be near impossible for any juror to forget the remarks or erase them from his or her memory upon cautionary instruction from the Court.
“5. An in limine ruling is required in order to insure that the defendant’s constitutional rights are not violated.
“The defendant requests a hearing on this motion.”
When this motion was heard by the trial court, the following occurred:
“THE COURT: If you want me to tell the district attorney at this time that he cannot comment on what would happen to the Defendant in the event that the jury should return a verdict of not guilty by reason of insanity, I will do that.
“MR. CARROLL: We would like that, Your Honor.”
* * * * * *
“THE COURT:... What he is saying is, Number one, he doesn’t want any comments about the fact that our mental hospitals in Alabama, i. e., Searcy and Bryce Hospital are very lenient about letting people out.
“MR. GRADDICK: I agree with that.”
During the trial, while the prosecutor was examining Dr. Skinner, a general physician at Searcy, the following colloquy occurred:
“Q. Searcy Hospital is a State hospital where they lock up insane people.
“A. Right.
“Q. Or they send people to Searcy if they’re insane to treat them?
“A. Right.
“Q. If they’re not insane, or if they’re sane, do they keep them there?
“A. They’re not kept. They’re evaluated and returned to the proper places.
“Q. I see. So, if they’re sane, they won’t keep them at Searcy Hospital?
“A. That’s right.
“Q. The people that they have up there are considered to be insane; is that correct?
“A. Every patient is insane.
“Q. Men and women?
“A. Right.
“Q. And over the twelve-month period of time you’ve had an opportunity to look at all these men and women that have been diagnosed as having been insane and having to be kept at the hospital?
“A. Right.
“Q. Those who are sane aren’t there?
“A. That’s right.
“Q. You probably could compare those individuals who are suppose to be insane to Tommy Whisenhant, can’t you?
“A. I don’t think I understand you.
“Q. Well, can you make a comparison about all the people you’ve seen that are judged to be insane by doctors and have an opinion as to whether or not he’s insane?
“A. I would think so.
“Q. What is your opinion?
“A. I think he’s sane.
“MR. GRADDICK: No other questions.”
Immediately after this witness testified, defense counsel called the line of questioning to the trial court’s attention and stated that he would consider reference to this testimony in closing argument as improper.
Subsequently, defense counsel moved for a mistrial and put on evidence. Defense counsel took the stand and testified that he observed the prosecutor give a television interview. From the record:
“Q. Can you tell the Court what the substance of that interview was?
“A. Several things were asked. He was asked the question to the effect of why did he ask Dr. Skinner what he asked him, what point he was trying to make, or something to that effect, and so Mr. Graddick said something to the—
“MR. HALE: Judge, we object to this on the grounds it’s not the best evidence. The film itself would be.
“THE COURT: I overrule. Go ahead.
“THE WITNESS: Mr. Graddick said something to the effect that I wanted them to know, referring to the jury, what happens to a person who is sent to that hospital and is found sane, that they’ll get out later on the public, something to that effect. Mr. Graddick said it on television.”
The defense then called the prosecutor to testify and the following occurred:
“DIRECT EXAMINATION
“BY MR. CARROLL:
“Q. Mr. Graddick, did you this afternoon give an interview to Mr. Mike Sullivan on Channel 5?
“A. Yes, sir.
“Q. When Mr. Sullivan asked you the question, why did you ask of Dr. Skinner the consequences of someone being sent to Searcy who is found sane, what did you respond to Mr. Sullivan?
“A. Mr. Carroll, honest to God I can’t remember because I gave three interviews out there. I’ve given interviews every day this week and I’m just — I’m not in a position to tell you exactly what I told him. As a matter of fact, I would have to go look at the film and make the determination.
“Q. So, it’s your testimony you simply don’t know what you told the press?
“A. Well, I mean I know in essence what I told him, but I can’t remember word-for-word.
“Q. What did you say in essence then?
“A. I think I told — Mr. Sullivan said that he had talked to Mr. Dees regarding why he made the — why he didn’t object when I asked the question and what my response to Mr. Dees’ waiting until the jury was gone and making a motion for a mistrial. And I told Mr. Sullivan that I asked the question of Dr. Skinner so that I could, and I think I used the word ‘inform’ them, and it was the jury, that Searcy Hospital does not keep sane people in there, in essence.”
The trial court denied the motion for mistrial. Further, he denied a motion to instruct the prosecutor to refrain from making further such remarks and a motion to instruct the jury to disregard Dr. Skinner’s testimony quoted above.
Then in closing argument to the jury, the prosecutor stated as follows:
“... We send insane people to institutions. Did you hear that? We send insane people to institutions. Insane people to institutions. This man is sane. We are not sending any insane person to an institution. He is sane. And he says the Judge has the authority — which he does by law — to determine what to do with the Defendant if you happen to find him not guilty by reason of insanity, but I can’t see how you can. I will argue to you that the law is that they’ve got to discharge someone at Searcy Hospital—
“MR. DEES: Object, Your Honor. May we approach the bench, Your Honor?
“MR. GRADDICK: (resumed): If he is found sane—
“THE COURT: Just a minute.
“MR. DEES: May we approach the bench, Your Honor?
“THE COURT: Go ahead.
(Discussion held at bench off the record.)
“MR. GRADDICK (resumed): Now, what I’m telling you is that there is not a State institution that is going to take a sane man if he is sane. So what we are saying is this: We are saying that we have proven that this man is guilty beyond all doubt. We are saying that the Defendant had to come off with this defense of insanity. He was sent to Searcy Hospital and evaluated by two psychologists and three psychiatrists. One out of five said that he thought the man was insane at the very moment that he killed Cheryl Payton. The other four said that he was sane.
“They are not going to take a sane man if you say that he is innocent. If you say that he is not guilty by reason of insanity, the Judge then has to do his duty.”
At the end of closing argument defense counsel moved for a mistrial on the basis of these comments in argument, which the trial court denied. The trial court further refused to give the jury precautionary instructions.
It has been long established law that such argument is highly improper; however the resulting error could be cured by the trial court’s sustaining objection to the comment and instructing the jury to disregard it. Anderson v. State, 209 Ala. 36, 95 So. 171; Bachelor v. State, 216 Ala. 356, 113 So. 67.
In Boyle v. State, 229 Ala. 212, 154 So. 575, a murder case, the assistant prosecutor argued, “That the effect of the finding of the defendant not guilty by reason of insanity would probably be to put him on the ground,” and, “If you find this defendant not guilty by reason of insanity Dr. Partlow will be the man who will afterwards have to consider and pass upon the question of sanity.” Counsel’s objections to these comments were overruled.
Our Supreme Court held that reversible error was committed. We find the following language:
“Clearly the sole question in this connection was whether defendant was ‘not guilty by reason of insanity.’
“What might happen if he were sent to the insane asylum, instead of the penitentiary, should not have been thrown into the case to influence the verdict. The action of the trial court was an invitation to the jury to consider such contingency. “Maybe the law should provide some greater safeguards, such as a judicial inquiry, before persons found not guilty murder by reason of insanity should be discharged from the hospital for the insane; but this should not be allowed to influence juries in trials like this. State v. Johnson, 151 La. 625, 92 So. 139. “Without considering further questions raised on the trial, the court is of opinion this conviction should not stand.” of
Boyle, supra, has been followed in Wise v. State, 251 Ala. 660, 38 So.2d 553, a capital case, and in Dunn v. State, 277 Ala. 39, 166 So.2d 878.
Subsequently, our Supreme Court has held that because of the cumulative effect of remarks of the prosecutor during closing argument, the resulting error could not be eradicated by the rulings and instructions of the trial court. Allred v. State, 291 Ala. 34, 277 So.2d 339.
The prosecutor’s remarks in Allred, supra, are set out below:
“Statement No. 1.
“ ‘And what did they do up at Bryce Institute? Of course, she went up to Bryce and they certified that in their opinion, or opinions, that she was insane. But what did they do with her? They kept her there from February until August and then put her back down here on us.’ ”
“Statement No. 2.
“ ‘Mr. White:. There’s no way on earth, within good conscience, that you can find that this woman is not guilty by reason of insanity on that day. And let her back out to walk the streets of this county and any other county that she wants to go into and kill whoever else she wants to.’ ”
“Statement No. 3.
“ ‘Mr. White: Okay. You all know how long she stayed in Bryce the last time. With that, I’ll close..
Justice Jones, writing for the Supreme Court, held that the case must be reversed, stating:
“In answering the question before us, we cannot analyze each statement separately to see whether, if standing alone, if would create an ineradicable bias or prejudice; but rather they must be considered together to determine whether or not, in their cumulative effect, they created a prejudicial atmosphere incapable of eradicability. Blue v. State, 246 Ala. 73, 19 So.2d 11; Kabase v. State, 244 Ala. 182, 12 So.2d 766.
“It is a general rule that where prejudicial statements are made in the heat of argument, even though improper, in accommodation of our adversary system, such statements are considered capable of being eradicated by the trial judge in sustaining objections thereto or by appropriate instructions to the jury or both. Dunn v. State, supra. See also Arant v. State, 232 Ala. 275, 167 So. 540. But our cases also recognize that an exception to this rule exists were, irrespective of the best efforts of the trial judge to disabuse the mind of the jury of any prejudicial impression, the conviction obtained is not in an impartial atmosphere. Blue v. State, supra. See also Pointer v. State, 24 Ala.App. 23, 129 So. 787; DuBose v. State, 148 Ala. 560, 42 So. 862.”
The last affirmation of the above case law by our Supreme Court appears in Christian v. State, Ala., 351 So.2d 623, reversing this Court’s decision at Ala.Cr.App., 351 So.2d 616. In that case the prosecutor made the following remarks:
“ ‘1. They are (Bryce Hospital) saying that he was insane then but is probably competent to walk the streets of Tuscaloosa today.
“ ‘2. But let me remind you that when he was released in 1971 he was ruled competent to live among normal people, and the next year he murdered his mother.
“ ‘3. Ladies and gentlemen, I live in this town (Tuscaloosa) and you know what our problems are.
“ ‘4. If you return a verdict of not guilty by reason of insanity against this man, this means this man is scott free — free to walk the streets of Tuscaloosa again.”
The State contended that, assuming the remarks were prejudicial, any error was cured by the following jury instruction:
“ ‘Now, on the other hand, ladies and gentlemen, if you analyze the evidence in this case that has been presented to you and you are reasonably satisfied that at the time of the commission of the act charged that this defendant was legally insane as I have defined it to you, it would be your duty to find him not guilty by reason of insanity and then the matter would further actually be up to the Court’ ” (Emphasis supplied).
The Supreme Court first noted that such argument was improper under their previous decisions in Allred, supra; Dunn, supra; Boyle, supra; and Anderson, supra. In conclusion they held that the closing argument of the prosecution constituted ineradicable error which was not cured by the instruction given the jury.
In the case at bar the State argues that the prosecutor’s remarks were a reply in kind to a portion of defense counsel’s closing argument. From the record:
“And the second one I asked him to read to you is this: T charge you that under the law of Alabama, the Court will decide what will happen to the Defendant if you find him not guilty by reason of insanity.’ ‘The Court will decide what will happen to the Defendant if you find him not guilty by reason of insanity.’ ”
This precise assertion was made by the State in Dunn, supra. We quote the Supreme Court’s reply.
“We have given careful consideration to the argument of counsel for the appellant and- we find no remarks therein which would justify the argument of the solicitor on the ground that it was in answer to argument made by opposing counsel. One of the lawyers for appellant in his argument did summarize the provisions of § 429, Title 15, Code 1940, which section reads:
“ ‘When a person has escaped indictment, or been acquitted of a criminal charge on the ground of insanity, the court, being informed by the jury, or otherwise, of the fact, must carefully inquire and ascertain whether his insanity in any degree continues, and, if it does, shall order him in safe custody, and to be sent to the Alabama state hospitals.’
“The reference to the provisions of the quoted statute did not, in our opinion, operate to justify the statements of the solicitor to which objections were interposed and overruled.”
Here, as in the above cited cases, the sole issue for the jury was appellant’s responsibility at the time the offense was committed. Prior to trial the prosecutor was warned to stay clear of this line of argument. However, a review of the prosecutor’s actions reveals that he repeatedly interjected this issue in the case before the jury, in disregard of the trial court’s instruction and well established law. Indeed, in the prosecutor’s own words, referring to questions asked of Dr. Skinner, “. I asked the question ... so that I could.. ‘inform’ them, and it was the jury, that Searcy Hospital does not keep sane people in there, in essence.”
In essence, this was highly improper. Because of the prosecutor’s prejudicial and reckless remarks this Court has no alternative but to reverse this case under the mandate of the decisions of our Supreme Court.
There is another glaring error which requires a reversal. The jury returned the following verdict:
“We, the jury, find the defendant guilty of capital murder as charged in the indictment and fix his punishment at death by electrocution.
/s/ Vicki H. McGaha Forewoman”
Under Watters v. State, Ala., 369 So.2d 1272 (1979) and Cook v. State, Ala.Cr.App., 369 So.2d 1260, released by this Court today, there is a fatal variance between the indictment and the judgment. The judgment must be reversed and the cause remanded.
We have carefully read the transcript in this case consisting of twelve volumes and have examined all exhibits introduced by the State and appellant. Our view includes the written findings of the trial judge following the hearing on the aggravating and mitigating circumstances as provided by § 13-11-4, Code of Alabama 1975. The trial court fully complied with the cited section, and its findings and sentence are fully supported by the evidence.
This is one of the most horrible crimes to reach this Court in a long time. We do not know what demonic thoughts passed through the sadistic mind of appellant which compelled him to commit this atrocious rape and murder and the perversities inflicted upon his helpless victim. Only appellant could give such answers but he remained silent at the sentencing hearing.
It is with great reluctance that we are forced to reverse and remand this case due to the prejudicial remarks of the prosecuting attorney in closing argument and the variance between the indictment and judgment, but we are left with no other choice.
REVERSED AND REMANDED.
All the Judges concur, except BOOK-OUT, J., who concurs specially with opinion.
[OPINION BY BOOKOUT, Judge, type=concurrence]
BOOKOUT, Judge,
concurring specially:
When certain statements of the prosecutor are isolated and quoted out of context, they may appear to have had a more prejudicial effect than they actually did. In the instant case, the appellant’s sanity was a hotly contested issue. He had been examined by competent experts in the field of psychiatry and psychology. Expert witnesses were examined and cross-examined during the course of the trial concerning the appellant’s sanity. Lengthy arguments were made by defense counsel in an effort to convince the jury that the appellant was in fact insane, while the State attempted to show that the appellant was legally sane at the time he committed the crime.
The majority, in its opinion, sets out certain excerpts from the record to show the cumulative effect of prejudicial remarks of the prosecutor. I take a different view of the prosecutor’s remarks in this particular case.
A portion of the State’s examination of Dr. Skinner is set out above in the majority opinion. In that colloquy it shows that persons retained at Searcy Hospital are considered insane and that persons who are considered to be sane are not kept there, but are returned to “proper places.” Dr. Skinner expressed an opinion that the appellant was sane. No objection by the appellant was made to the question propounded or answer given during the course of that colloquy. The prosecutor was merely pointing out to the jury that the appellant, after having been examined at Searcy Hospital, was found to be sane, otherwise he would have been retained there.
Later, defense counsel took the witness stand outside the presence of the jury and testified as to a television interview given by the prosecutor. Counsel for the defense stated that the prosecutor made a statement to the interviewer that if a person is found to be sane “that they’ll get out later on the public, something to that effect.” (Emphasis supplied.) The prosecutor then took the stand and stated that he did not remember “word-for-word” what he said at the interview, but that he had questioned Dr. Skinner in such a manner as to inform the jury “that Searcy Hospital does not keep sane people in there in essence.” The jury did not see the interview.
It is apparent that part of the prosecutor’s strategy in this regard was to point out the sanity of the appellant, i. e. had he been insane, he would still be in Searcy Hospital. A portion of the prosecutor’s later argument is along the same line:
“.. .He was sent to Searcy Hospital and evaluated by two psychologists and three psychiatrists. One out of five said he thought the man was insane at the very moment he killed Cheryl Payton. The other four said he was sane.”
The prosecutor’s strategy in examining Dr. Skinner, as well as his argument that Searcy Hospital does not keep sane people incarcerated, would appear to be a legitimate argument to support the State’s position that the appellant was sane and therefore responsible for his criminal actions.
The majority further quotes from the prosecutor’s closing argument to the jury. That excerpt was taken out of context. It actually begins as a reply to comments made earlier by defense counsel. To put it in proper perspective, I will quote a portion of those comments from the record underlining the part omitted by the majority opinion:
“Mr. Dees fdefense counsell savs that we used to take people out and shackle them: crazy people out and shackle them in the wilderness. Tie their hand off and leave them out there. And he said that we are sophisticated today. We send insane people to institutions. Did you hear that? We send insane people to institutions. Insane people to institutions. This man is sane. We are not sending any insane person to an institution. He is sane. And he [defense counsel] says the Judge has the authority — which he does by law — to determine what to do with the Defendant if you happen to find him not guilty by reason of insanity, but I can’t see how you can. I will argue to you that the law is that they’ve got to discharge someone at Searcy Hospital — ”
At that point, defense counsel made a general objection and requested to approach the bench, at which time a discussion was held at the bench off the record. No grounds for objection are stated in the record, and no ruling by the trial judge is found at this point. The district attorney then resumed his argument. Again, only a portion of the argument is set out in the majority opinion. I must strongly point out that no objection by defense counsel was made to that portion of the oral argument quoted in the majority opinion. It was later in the argument that defense counsel stated: “Your Honor, I object. If this jury finds this man guilty, they have to sentence him to death. I don’t understand this line of argument. It’s improper.” The court then stated: “I’ll sustain the objection. I’ll charge the jury in the morning.” Therefore, when an objection was made the court ruled in favor of the appellant, and the court did give an extensive charge to the jury the next day.
The one comment which appears to concern this court more than any other was: “They are not going to take a sane man if you say that he is innocent. If you say that he is not guilty by reason of insanity, the Judge then has to do his duty.” Aside from their being no objection at that time and there being a ruling favorable to the appellant on the later objection, it appears that this latter argument of the prosecutor could reasonably be considered as a reply in kind to an earlier argument made by the defense. In referring to written requested charges made by defense counsel and submitted to the trial court, he argued to the jury:
“And the second one I asked him to read to you is this: “I charge you that under the laws of Alabama, the Court will decide what will happen to the Defendant if you find him not guilty by reason of insanity.’ ‘The Court will decide what will happen to the Defendant if you find him not guilty by reason of insanity.’ ”
Therefore, the prosecutor’s later argument that “if you say that he is not guilty by reason of insanity, the Judge then has to do his duty” is no more or no less that which the defense attorney had earlier requested the trial court to charge the jury and bad himself argued to the jury.
The comments of the prosecutor complained of in the majority opinion do not anywhere reach the degree of prejudicial effect of the comments in Allred, supra, Christian, supra, and other cases cited by the majority. In Allred the prosecutor told the jury that if they found the defendant not guilty by reason of insanity, she would be “back out to walk the streets of this county and any other county that she wants to go into and kill whoever else she wants to.” In Christian the prosecutor reminded the jury that the defendant had been released from Bryce Hospital earlier and had murdered his mother the following year. He then went on to tell the jury that a verdict of not guilty by reason of insanity would mean “this man is scott free — free to walk the streets of Tuscaloosa again.”
In Dunn, supra, the Alabama Supreme Court did not find an argument on behalf of the defendant which would justify the later argument of the prosecutor. In that case the Court found that one of the defense attorneys had summarized the provisions of Title 15, § 429, Code of Ala. 1940, during argument. The Supreme Court held that summarizing that Code section was not justification for the prosecutor later stating: “Now, I further think, and think you as men of good common sense know, that if you sent this defendant as an insane man up to Tuscaloosa, the State mental institution, he wouldn’t stay up there more than ten days. That is my opinion.” Then, after a warning by the trial judge, the prosecutor again stated: “Well, I will say, in my opinion, they wouldn’t keep him up there.”
In the instant ease, I do not take the prosecutor’s comments as informing the jury that if they find the appellant not guilty by reason of insanity that he would not be kept in the State mental institution and would be free to walk the streets again and kill at will.
I consider the prosecutor’s comments as legitimate argument on the issue of the appellant’s sanity and a legitimate reply in kind to arguments made by defense counsel. The trial court sustained the appellant’s objection to the line of argument which drew the most emphasis in the majority opinion. When the objection was sustained, any error was cured. Dunn, supra.
We have often quoted from Arant v. State, 232 Ala. 275, 280, 167 So. 540, 544 (1936) that: “[W]e must not lose sight of the fact that a trial is a legal battle, a combat in a sense, and not a parlor social affair.” I therefore believe that the prosecutor’s remarks, though hard hitting, did not constitute error necessitating a new trial when considered in context, in light of the arguments advanced by defense counsel, and in light of the trial court’s comprehensive charge to the jury.
If this cause is reversible, it should be based not upon the conduct of the prosecutor, but upon error spelled out in two recent cases by our Supreme Court.
In the instant case, the appellant was indicted for the crime of “rape when the victim is intentionally killed by the defendant.” (Emphasis supplied.) (Section 13-ll-2(a)(3), Code of Ala. 1975) The trial judge charged the jury that if they found the appellant guilty, the form of their ver-diet would be: “We, the jury find the Defendant guilty of murder as charged in the indictment and fix the punishment at death.” (Emphasis supplied.) That was an improper instruction, but no exception was taken by the defense.
The jury, however, returned a guilty verdict in another form: “We, the jury, find the Defendant guilty of capital murder as charged in the indictment and fix his punishment at death by electrocution.” (Emphasis supplied.)
In Clements v. State, Ala., 370 So.2d 723 (1979), the appellant was indicted for “robbery... when the victim is intentionally killed by the defendant.” (Section 13-ll-2(a)(2), Code of Ala. 1975) After an erroneous charge by the trial court, the jury returned a verdict of “guilty of first degree murder with aggravated circumstances.” (Emphasis supplied.) The Alabama Supreme Court reversed that conviction and death sentence because the jury found that appellant guilty of an offense not charged in the indictment.
In Watters v. State, Ala., 369 So.2d 1272 (1979), the appellant was likewise indicted for robbery when the “victim is intentionally killed by the defendant,” and the jury there likewise found him guilty of murder, and judgment was entered as “guilty of capital murder.” (Emphasis supplied.) Again, the Supreme Court found a fatal variance between the indictment and judgment.
Based on the mandate of Watters, this court this date has reversed and remanded Cook v. State, (after remandment to us by that Court with directions, Cook v. State, Ala., 369 So.2d 1251 [Opinion corrected February 9, 1979]). In Cook, we found that the appellant was also indicted for capital robbery, but convicted of “murder in the first degree.”
Since the instant appellant was charged with “rape when the victim is intentionally killed by the defendant,” but was found guilty of “capital murder,” the case should be remanded for a new trial solely on that basis as mandated by the Supreme Court opinions in Clements and Watters, supra.
The record reveals there was no mutilation on the body of one of the previous victims. He had gone into a compact store, shot and killed a woman clerk, left the store and not returned to the murder scene.
In re Thomas Warren WHISENHANT v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.
78-426.
Supreme Court of Alabama.
May 11, 1979.
Charles A. Graddick, Atty. Gen., James F. Hampton, J. Anthony McLain, Asst. Attys. Gen., for the State, petitioner.
No brief for respondent.
[OPINION BY BEATTY, Justice. type=majority]
BEATTY, Justice.
WRIT DENIED.
TORBERT, C. J., and BLOODWORTH, JONES, SHORES and EMBRY, JJ., concur.
MADDOX, FAULKNER and ALMON, JJ., dissent.
[OPINION BY MADDOX, Justice type=dissent]
MADDOX, Justice
(dissenting).
I would grant the writ. The Court of Criminal Appeals, in its opinion, says:
“This is one of the most horrible crimes to reach this court in a long time. We do not know what demonic thoughts passed through the sadistic mind of appellant which compelled him to commit this atrocious rape and murder and the perversities inflicted on his helpless victim.”
Then why is the perpetrator of this crime entitled to a new trial? Because, says a majority of the Court of Criminal Appeals, and a majority of this Court, the district attorney made a prejudicial argument to the jury and the jury verdict did not find Whisenhant guilty of a capital offense. I have read the opinion of the Court of Criminal Appeals and the State’s petition and brief, and I think that the Court of Criminal Appeals may have misapplied the law contained in prior decisions of this Court in reaching the conclusion that the prosecutor’s argument was prejudicial. Judge Bookout, of the Court of Criminal Appeals, was of the opinion that the prosecutor’s comments were “legitimate argument on the issue of the appellant’s sanity and a legitimate reply in kind to arguments made by defense counsel.” I think the State has shown probable merit on its request to review the issue of the prejudicial effect of the prosecutor’s argument; therefore, I would grant the writ on this ground.
I would also grant the writ on the additional ground that it should be clear to anyone, even those not learned in the law, that the jury, by finding the defendant “guilty of capital murder as charged in the indictment and fix his punishment at death by electrocution,” decided the question in issue in such a way that the trial court was able to enter a judgment. That is all that the law requires, at least that is all that the law required until this Court released Clements [v. State Ala., 370 So.2d 723, 1979] one of the cases followed by the Court of Criminal Appeals here. I dissented in Clements and I will respectfully continue to dissent when Clements is cited as authority because I think Clements was incorrectly decided.
There is no question but that Whisenhant was charged with a capital felony, that he was tried on that charge, and that the jury returned a verdict which was responsive to that charge. The law says that if the intention of the jury can be ascertained with reasonable certainty, the verdict should be sustained. The law also says that, in ascertaining that intention, the court should give the verdict a liberal and reasonable construction and should construe it with reference to the pleadings, evidence, instructions, and the entire record. The rule announced in Clements, and required to be followed by the Court of Criminal Appeals here, is exactly opposite to the general rules that have traditionally been used for construing jury verdicts in criminal cases. I would grant the writ and reverse Clements.
FAULKNER, J., concurs.
[OPINION BY ALMON, Judge type=dissent]
ALMON, Judge
(dissenting).
I do not agree with this Court in Clements v. State, Ala., 370 So.2d 723 (1979) and Waiters v. State, Ala., 369 So.2d 1272 (1979), with regard to the question of variance between the verdict of the jury and the indictment.
As to the improper argument of the District Attorney issue, I do not, without considering the entire record, conclude that the Court of Criminal Appeals is incorrect, however, I would grant the writ of certiorari and review the record in view of Judge Bookout’s observations in his special concurring opinion.
Thomas Warren WHISENHANT v. STATE.
1 Div. 333.
Court of Criminal Appeals of Alabama.
Nov. 23, 1982.
Rehearing Denied Dec. 28, 1982.
John L. Carroll and Morris S. Dees, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen. and James F. Hampton and J. Anthony McLain, Sp., Asst. Attys. Gen., for appellee.
[OPINION BY TYSON, Judge. type=majority]
TYSON, Judge.
Appellant was originally sentenced to death on September 7, 1977, for the rape and murder of Cheryl Lynn Payton. That conviction was reversed by this Court on February 20, 1979, because of improper closing argument by the prosecutor and because of a variance between the indictment and judgment. Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.), cert. denied, 370 So.2d 1106 (Ala.1979). Appellant was retried and convicted under § 13A-5-31(a)(3), Code of Alabama 1975, for the capital felony of rape when the victim, Cheryl Lynn Payton, was intentionally killed. After a separate hearing on aggravating and mitigating circumstances, the jury fixed appellant’s punishment at death. Subsequently, the trial court weighed the aggravating and mitigating circumstances pursuant to § 13A-5-33, Code of Alabama 1975, and sentenced appellant to death. The court issued written findings of fact which enumerated the aggravating circumstances it deemed sufficient to support the sentence of death.
The shocking facts surrounding the intentional killing of Cheryl Lynn Payton by appellant are set forth in detail in our previous opinion and are incorporated by reference herein. Whisenhant, supra.
I
Appellant contends the trial judge erred in denying his motion for funds to employ two named independent psychiatrists of appellant’s own choice.
The thrust of appellant’s motion was to request funds in the amount of $3500 for the exclusive purpose of hiring two specifically named psychiatrists, Dr. Claude Brown and Dr. Emmanuel Tanay. A general request for non-specified psychiatric experts was not made by appellant, nor was a request for a re-evaluation by State psychiatrists submitted.
Appellant’s motion asserted that neither Dr. Brown nor Dr. Tanay would assist the appellant by testifying at trial in the absence of payment for their assistance. The motion admits that both psychiatrists had previously extensively evaluated appellant and that testimony or reports by both men were admitted at the previous trial. It appears that the motion requested funds primarily to pay for their trial testimony at this trial, and not funds to conduct initial psychiatric evaluations of appellant.
Despite the assertion by appellant’s counsel at trial and in brief, Dr. Brown did appear and testify as a State’s subpoened witness at the final phase of the instant trial. At that hearing, Dr. Brown specifically stated that his opinion as to appellant’s sanity at the present time had not changed from the time of his testimony at appellant’s prior trial. Dr. Brown then testified as follows:
“Q Now, Doctor, if the Defense had called you to the stand here in Mobile County, Alabama, in the case of State of Alabama v. Thomas Whisenhant which was tried this year, would your testimony have been the same as it was back in 1977?
“A I’m sure in essence it would have been, yes.
“Q In essence it would have been the same testimony?
“A Right.
“Q Okay, did the Defense call you to testify?
“A No.
“Q Did they subpoena you, Doctor?
“A Not that I recall.
“Q Doctor, if the defense had called you to testify and had placed you under oath within the Court of law and in front of the jury in the case that was tried here just a little while ago in this courtroom, would your testimony have been essentially the same, even if you had not been paid one nickel by the Defense?
“A Yes.
“Q Doctor, the Defense at this time, did they ever pay you anything with regard to your fee on the Whisenhant case?
“A In 1977, yes.
“Q Right.
“A They did.
“Q Okay. In 1981 did they pay you anything at all?
“A No.
“Q And even if they had not paid you and they had brought you down here and had put you on the stand and has (sic) asked the same questions that were in the last trial, your testimony would have been essentially the same?
“A Yes.”
(R. 729-720)
Another ground asserted by appellant for granting his motion for funds for the two named experts was that their testimony was necessary to rebut the testimony of State’s witnesses Doctors Rudder, Kimbrough, Harrison, Kathandopondi, and Skinner, whom appellant presumed would testify for the State at the second trial. The record reveals that none of these men testified at appellant’s second trial.
A defendant may have the right to the appointment by the State of an expert where it is shown to be necessary for an adequate defense. Clisby v. State, 456 So.2d 86 (Ala.Cr.App.1982); Annot. 34 A.L.R.3d 1256 (1970). However there exists no constitutional right to the appointment of a private psychiatrist of a defendant’s own choosing at public expense, as requested by appellant. Satterfield v. Zahradnick, 572 F.2d 443 (4th Cir.), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978); Clisby, supra; Thigpen v. State, 372 So.2d 385 (Ala.Cr.App.), cert. denied, 372 So.2d 387 (Ala.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 690, 62 L.Ed.2d 660 (1980).
As in Satterfield, supra, appellant was examined by psychiatrists at a State mental hospital and found competent to stand trial. No motion was made by appellant’s counsel at the second trial for a reexamination by the State hospital or for a psychiatric examination generally. We find as in Satterfield, that in light of the use of State statutory provisions for committing a criminal defendant to a State mental facility for examination and observation, no further duty devolves upon the State to appoint a private psychiatrist of appellant’s own choosing at State expense for the benefit of indigent defendants. Here, as in Satterfield, the reports and testimony of the State psychiatrists indicating appellant’s mental sanity were not submitted into evidence against appellant by the State.
Dr. Brown’s testimony at the sentencing hearing indicated he could and would have testified as to appellant’s insanity, based on his prior examination of appellant, had appellant’s counsel chosen to subpoena him to testify at trial. Appellant could have procured psychiatric testimony, in addition to that of the State hospital personnel had he chosen to do so. See Williams v. Martin, 618 F.2d 1021 (4th Cir.1980) distinguishing Satterfield, supra.
As well, the trial court, pursuant to § 15-12-21(d), Code of Alabama 1975, granted appellant the statutory maximum of $500 for use in obtaining expert assistance of his own determination, such to include “a psychologist- to perform intelligence and personality tests on the defendant.” To the extent the trial court felt the legislature had deemed appropriate, it granted appellant’s motion for funds for expert witnesses. See Harris v. State, 352 So.2d 460 (Ala.Cr.App.1976), affirmed, 352 So.2d 479 (Ala.1977).
Considering the availability of the State psychiatric staff to testify; the appellant’s knowledge of and access to the prior reports and testimony of Doctors Brown and Tanay, as well as the availability of Dr. Brown’s present testimony; the lack of any positive testimony as to appellant’s sanity by the State psychiatric experts; the $500 expense fee allowed by the trial court; and the appellant’s failure to request other than specified private experts of his own choosing, we find no possible deprivation of any constitutional right of appellant in the matter of his sanity.
II
A
Appellant argues the trial judge erred in excluding certain jurors from the jury venire based upon their expressed opposition to the imposition of capital punishment. He contends the questions asked by the trial court were inadequate to excuse those jurors under the standard formulated in Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968).
In Witherspoon the test for excluding jurors is formulated as follows:
“[Njothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant’s guilt. Nor does the decision in this case affect the validity of any sentence other than one of death. Nor, finally, does today’s holding render invalid the conviction, as opposed to the sentence, in this or any other case.”
391 at 522, 523, n. 21. (Emphasis added).
The questions asked of the jurors excused from the venire on this basis appear in the record as follows:
“Is there any member of this jury who does not believe in the death penalty?
“Now that I have asked that question I will ask several other questions, but first I will get your name, please, sir.
“JUROR: F.M.?
“THE COURT: F.M.?
“JUROR: M.
“THE COURT: He’s number 19 in panel number 2. Now, Mr. M., are you telling me that regardless of the facts and circumstances in this case, regardless of whatever the evidence may be, that because of your belief — that is, that you do not believe in the death penalty— that regardless of the facts and circumstances that you would automatically vote not guilty rather than vote death by electrocution?
“JUROR: No, sir, I wouldn’t vote that. What I would vote by sending him to the electric chair is not going to bring the one he killed back. I would rather see him work continuously until he is dead or until he is passed away, to let him know that the life he taken—
“THE COURT: All right. Just a minute.
“JUROR: —that he suffer for the life he had taken.
“THE COURT: Just a minute. You are telling me, then, that regardless of the facts and circumstances you could never vote for death by electrocution? Are you telling me that?
“JUROR: No, sir, my religion don’t tell me (inaudible). It don’t tell me that. My religion say a man shall pay, but not by death. Ain’t but one—
“THE COURT: You’re telling me, then — I don’t want you to go through all of that. You’re telling me then that regardless of the facts and circumstances in this case that you could not under any circumstances vote for death by electrocution. Are you telling me that? Yes or no.
“JUROR, No, sir, I couldn’t vote for death.
“MR. GRADDICK: I challenge.
“THE COURT: It’s granted, over the objection of Mr. Carroll.”
(R. 46-47)
“JUROR: S.B.
“THE COURT: All right, the same question to you, Mrs. B. Are you telling me that regardless of the facts and circumstances in this case that under no circumstances — under no circumstances, no facts would justify you in bringing in a verdict of death by electrocution? In other words, you would preclude that from your mind prior to the trial even starting?
“JUROR: That’s right.
“MR. GRADDICK: Challenge.
“THE COURT: Granted over the objections of Mr. Carroll.”
(R. 48)
“JUROR: M.P.
“THE COURT: M.P., and that’s number 54.
“Now, again, I have told you the various verdicts that may be brought in in this case, but if in the second stage of this case, that is, the sentencing stage, are you telling me prior to the start of this case and prior to knowing the facts in the case that regardless of what they would be, that because of your belief that you would not or could not under any circumstances render a verdict of death by electrocution?
“JUROR: That’s right, sir.
“THE COURT: That’s what you’re telling me?
“JUROR: Yes, sir.
“MR. GRADDICK: Challenge.
“THE COURT: Granted, again over the objections of the attorneys for the Defendant and you may go back to — ” (R. 48-49)
“JUROR: P.M., panel six.
“THE COURT: P.M., panel six, and that’s number sixty-six, and ma’am, are you telling me that in the second phase of the trial, should it come to that, regardless of the facts and circumstances that you would, because of your personal belief—
“JUROR: Yes, sir.
“THE COURT: —or you could not because of your personal belief vote for the penalty of death by electrocution.
“JUROR: Yes.
“MR. GRADDICK: Challenge for cause.
“THE COURT: That’s number 66. You may go back to that uncomfortable room.
“CLERK: Strike P.M.”
(R. 49)
“JUROR: B.S., panel five.
“THE COURT: All right, number 49, B.S. Are you telling me that regardless of the facts and circumstances which may be presented in this case, in the sentencing phase that you would automatically refuse to return a verdict of death by electrocution regardless of what the facts and circumstances are?
“JUROR: Yes, I am.
“MR. GRADDICK: Challenge.
“THE COURT: You may go back to that uncomfortable room.
“CLERK: In panel number five strike B.S.”
(R. 49-50)
Having viewed the venire questioning in light of Witherspoon and Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969), we find the trial court properly excused the questioned jurors under an appropriate prong of the Witherspoon standards. Dobard v. State, 435 So.2d 1338 (Ala.Cr.App.1982).
B
Appellant alleges the jurors were improperly excused in that the trial court refused to allow appellant’s attorney to have the opportunity to interview those jurors who were opposed to the death penalty out of the presence of the other jurors. No request was made to interview these jurors on this matter in the presence of the other members of the venire.
We know of no rule of law which would have required the sequestration of the named jurors for questioning by appellant. This was a matter for the discretion of the trial judge. Beecher v. State, 288 Ala. 1, 256 So.2d 154 (1971), rev'd on other grounds, 408 U.S. 234, 92 S.Ct. 2282, 33 L.Ed.2d 317 (1971); Collins v. State, 271 Ark. 825, 611 S.W.2d 182, cert. denied, 452 U.S. 973, 101 S.Ct. 3127, 69 L.Ed.2d 984 (1981); Turner v. Commonwealth, 221 Va. 513, 273 S.E.2d 36 (1980), cert. denied, 451 U.S. 1011, 101 S.Ct. 2347, 68 L.Ed.2d 863 (1981). Further we find that the answers of the disqualified jurors unmistakenly and plainly controverted the Witherspoon standards. Burns v. Estelle, 626 F.2d 396 (5th Cir.1980). No further questioning was necessary to reveal the extent and nature of the jurors’ beliefs. Additionally, had appellant desired further questioning of the jurors, he could have requested that the judge make further inquiry or that appellant be allowed to do so in the presence of the other jury venire members. See Griffin v. State, 383 So.2d 873 (Ala.Cr.App.) cert. denied, 383 So.2d 880 (Ala.1980).
Ill
Appellant contends error occurred when the trial court allowed four prospective jurors, who knew or were told that appellant had been previously convicted of the offense for which he was then being retried, to serve as trial jurors.
Citing United States v. Williams, 568 F.2d 464 (5th Cir.1978), appellant contends that persons who have learned of a defendant’s prior criminal record are presumed to be prejudiced, especially where the jurors receive information that a jury had previously convicted the defendant of the very crime charged.
Two notable factual distinctions are apparent between Williams and this ease. First, the rule applied in Williams is a rule applied by the United States Supreme Court and other federal courts to federal criminal trials, in the context of the Supreme Courts “supervisory power to formulate ... proper standards for enforcement of the criminal law in the federal courts. ...” Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250, 1252 (1959). As the court in Williams points out, “[T]he Marshall rule is considerably broader than the constitutional standard and provides more protection against prejudice.” Williams, 568 F.2d at 469.
The second factual distinction to be noted is that Williams involved information concerning the prior conviction learned by jurors during trial from a television newscast, which the court deemed to contain greater opportunities for prejudice than pretrial publicity. In the instant case the four jurors who served at trial learned of the conviction either through pretrial publicity, or through answers to questions elicited by appellant himself during the jury venire voir dire as to jurors’ unconfirmed, often factually unsound, independent recollections of the prior disposition of the case.
In applying Marshall, the court in Williams was careful to point out that each case must turn on its own special facts in determining the extent and degree of potential prejudice.
The State persuasively contends that the appropriate standard to be applied in this case is not the Marshall rule, but rather the rule expressed in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Murphy specifically states that the Marshall rule has no application beyond the federal courts. The appropriate standard to be applied is to look at the totality of the circumstances to determine if the appellant’s trial was fundamentally fair. It is constitutionally sufficient if the juror can lay aside his impression or opinion and render a fair and impartial verdict based on the evidence presented in court. The appellant must demonstrate the actual existence of an opinion in the mind of the juror which raises a presumption of partiality. Murphy, supra.
We have reviewed the voir dire of the four jurors who remained on the jury panel and find that appellant has fallen short of demonstrating an inference of factual prejudice. Juror M. indicated the following recollections:
“Mr. M., can you tell us pretty much what you remember from what you’ve read or heard about it?
“JUROR: The biggest thing I recollect is that I believe the thing was thrown out, was it not, to be retried. When this thing happened initially — it’s been four years or so ago — I think I probably heard something on the radio at that particular time, but very little. I don’t recall a lot about it.
“MR. DEES: I see. From what you remember, do you know anything that might have happened in the case, what kind of crimes took place or anything, from what you remember?
“JUROR: Well, the best I recollect I believe there was a convenience store involved and a robbery or maybe there was a robbery. I’m not even sure about that, and this man I believe was accused of murdering the employee, and, really, that’s about all I can recollect. I don’t remember any details or anything.”
(R. 142-143)
The record does not reveal any knowledge on the part of Juror J. although one juror on his venire panel stated the following factual inaccuracy:
“MR. DEES: Do you know what, if anything, happened to him after he was arrested for that?
“JUROR: None other than he was tried, and given life, I think.”
(R. 180)
Juror S. appears to have stated this recollection:
“MR. DEES: Is that what each of you understand to be what happened in the case?
“JUROR: I’m not sure. I know that it was overturned, but I'm not sure.”
(R. 253)
However, another prospective juror on Juror S.’ panel made this statement:
“MR. DEES: What happened in any former trial or proceeding in this case? Do you know?
“JUROR: I believe the Defendant was found guilty in the trial in Birmingham and then it discontinued, I believe, on an appeals court because of something that was alleged to have been said by the Attorney General.” (R. 253)
The final juror, Mr. Emerson, stated the following:
“MR. DEES: Mr. Emerson, could you tell me what pretty much sticks in your mind about what you may know about this case from prior publicity?
“JUROR: Just the 7-11 girl was taken from the 7-11, and as far as conviction, I never even—
“MR. DEES: Never knew it?
“JUROR: I travel, so I’m out of town.”
(R. 265)
Another juror on Mr. Emerson’s panel responded to defense counsel as follows:
“Mrs. Bloess, could you just kind of your recollections, just generally what you might have read about this case, seen, heard or know in general?
“JUROR: Basically, what I recollect, that he was convicted of murdering the lady in the Pak-A-Sack, I believe.
“MR. DEES: Yes, ma’am.
“JUROR: And tried and convicted.” (R. 264)
Having reviewed the questions and answers in relation to the entire jury venire selection process, we find no empaneled juror who expressed any belief in the relevancy of his or any other juror’s recollections as to appellant’s prior conviction. Viewing the totality of the circumstances, we simply do not find the vague knowledge of the jurors in this case as to appellant’s prior conviction to have been inherently prejudicial to appellant’s case. As well, appellant has failed to carry the burden of proving the existence of actual prejudice as a result of any such knowledge on the part of these jurors. Lowe v. State, 384 So.2d 1164 (Ala.Cr.App.), cert. denied, 384 So.2d 1171 (1980).
IV
Appellant alleges the trial court erred in refusing to charge the jury, at the penalty phase of the trial, that proof beyond a reasonable doubt that the aggravating circumstances outweigh the mitigating circumstances, must exist before the death penalty may be imposed. The trial court instructed the jury in part as to burden of proof as follows:
“If you unanimously find beyond a reasonable doubt that one or more of the three aggravating circumstances I instructed you on previously does not exist in this case, then you should proceed to weigh the aggravating circumstance or circumstances against the mitigating circumstances. Excuse me, I said does not; does exist. I instructed you previously does exist in this case, then you should proceed to weigh that aggravating circumstance or circumstances against the mitigating circumstances which exist in this case. Based upon that weighing process you should determine whether the punishment of the Defendant in this case should be fixed at life imprisonment without parole or at death.
“The process of weighing aggravating and mitigating circumstances against each other in order to determine the proper punishment is not a mechanical process. Your weighing of the circumstances against each other should not consist of merely adding up the number of aggravating circumstances and comparing that number to the total of mitigating circumstances. The law of this State recognizes that it is possible in at least some situations that one or a few aggravating circumstances might outweigh a large number of mitigating circumstances. The law of this State also recognizes that it is possible in at least some instances that a large number of aggravating circumstances might be outweighed by one or a few mitigating circumstances. In other words, the law contemplates that different circumstances may be given different weights or values in determining the sentence in a case and you, the jury, are to decide what weight or value in determining sentence is to be given to a particular circumstance in light of all the circumstances that you have heard in this case. You must do that in the process of weighing the aggravating circumstance or circumstances against the mitigating circumstances.
“In reaching your findings concerning the aggravating and mitigating circumstances in this case and in determining what the punishment in this case should be, you must avoid any influence of passion, prejudice or other arbitrary factors. Your deliberation and verdict should be based upon the evidence that you have seen and heard and the law which I have instructed you on. There is no room for the influence of passion, prejudice or other arbitrary factor and it is your solemn duty to avoid the influence of such factors.”
(R. 717-718)
Appellant apparently contends, as did the Florida petitioner in Ford v. Strickland, 676 F.2d 434 (11th Cir.1982) that the crime of capital felony in Alabama includes the element of mitigating circumstances not outweighing aggravating circumstances, which as an element of the substantive crime, must be proved beyond a reasonable doubt, as required by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). We also reject this argument as did the court in Ford.
Under the Alabama Death Penalty Statute as modified by Beck v. State, 396 So.2d 645 (Ala.1980), the sentence determining phase is entirely separate from the trial on the guilt finding phase of the capital offense. That the mitigating must outweigh the aggravating factors is not an element of the capital offense in Alabama. The sentencing procedure outlined in Beck only applies in the event the defendant is first found guilty of the substantive capital offense.
“The central issue in the guilt phase of the trial will be whether the State has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilty of a capital crime. In the event the defendant is found guilty of the capital offense, the sentencing procedures hereinafter outlined shall apply.”
396 So.2d at 662
In Alabama, the State must prove the aggravating circumstances averred in the indictment beyond a reasonable doubt.
However, the fact that due process protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged is not relevant under Beck as to weighing aggravating and mitigating circumstances at the sentence determining phase.
The separate acts of proving facts at the guilt phase and weighing facts against each other at the penalty phase are not to be confused.
“While the existence of an aggravating or mitigating circumstance is a fact susceptible to proof under a reasonable doubt or preponderance standard, see State v. Dixon, 283 So.2d 1, 9 (Fla.1973), and State v. Johnson, 298 N.C. 47, 257 S.E.2d 597, 617-18 (1979), the relative weight is not. The process of weighing circumstances is a matter for judge and jury, and, unlike facts, is not susceptible to proof by either party. Petitioner’s contrary suggestion is based on a misunderstanding of the weighing process, the statute and the guiding and channeling function identified in Proffitt v. Florida, 428 U.S. [242] at 258, 96 S.Ct. [2960] at 2969 [49 L.Ed.2d 913], Indeed, it appears no case has applied In re Winship in the manner Ford urges. The North Carolina and Utah cases cited by him which imposed a reasonable doubt standard in this situation turned on construction of state statutes rather than the due process rationale of In re Winship. See State v. Johnson, 257 S.E.2d at 617, and State v. Woods, 648 P.2d 71 (1981) [No. 16486, Sept. 21, 1981].”
676 F.2d at 442.
As well, at the sentencing phase the State is permitted to offer any other statutorily listed aggravating circumstance which was not averred in the indictment, but which was proved beyond a reasonable doubt at the guilt phase at the sentencing hearing. Beck at 663. Thus while the aggravating circumstances must be proven beyond a reasonable doubt, the jury may return the death penalty if it simply does not find the aggravating circumstances are outweighed by the mitigating circumstances. We find this to be in accord with sentencing procedures previously upheld as meeting constitutional standards. Gray v. Lucas, 677 F.2d 1086 (5th Cir.1982). See also People v. Frierson, 25 Cal.3d 142, 158 Cal.Rptr. 281, 599 P.2d 587 (1979).
Finally, considering (1) that Alabama law requires the trial judge to file written findings of fact sustaining the death penalty and (2) that Beck ensures the function of appellate review is to guarantee similar results in similar circumstances under all cases, we find no error in allowing Alabama jurors to “weigh” the aggravating and mitigating factors, as opposed to determining them under a reasonable doubt standard.
V
Appellant argues the court erred in refusing to give the following requested charge:
“If you see fit, whether mitigating circumstances exist or not, you may recommend mercy for the defendant. This recommendation is solely in your discretion and not controlled by any rule of law. You may make such recommendation with or without a reason.”
(R. 116)
This charge was correctly refused because it is an erroneous statement of the law in Alabama. The correct principle underlying this issue is stated in Beck, supra, as follows:
“The court shall instruct the jury that in determining whether to fix a punishment of death, the jury must weigh the aggravating and mitigating circumstances in determining whether to fix the punishment at death. The trial court shall instruct the jury to avoid any influence of passion, prejudice or other arbitrary factor while deliberating and fixing the sentence.”
396 So.2d at 663.
Clearly, it is the duty of the jury to weigh mitigating and aggravating circumstances in its decision. The jury is not free, as appellant’s charge suggests, to arbitrarily ignore any factor, positive or negative, in arriving at the correct sentence.
As well, we view Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2760, 49 L.Ed.2d 913 (1976) to have tacitly held that the availability of such a mercy option to the sentencing authority is not a constitutional requirement. As Mr. Justice White’s concurring opinion in Proffitt points out, the sentencing authority in Florida is required to impose the death penalty on all first degree murderers as to whom the statutory aggravating circumstances outweigh the mitigating circumstances. Proffitt at 260. This required imposition of the death penalty, regardless of mercy, passed constitutional muster in Proffitt, and is in keeping with the concern that arbitrary and capricious imposition of the death penalty be avoided. Hopper v. Evans, 456 U.S. 605, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982).
VI
Appellant questions the trial court’s refusal to give the following charge:
“In this proceeding, if your verdict is not unanimous the defendant will be sentenced to life imprisonment without the possibility of parole.”
(R. 116)
Appellant contends that because the charge virtually tracks language from Beck, supra, that its refusal was error. In Beck, the court stated the following:
“If the jury cannot agree on a sentence of death, the defendant shall be sentenced to life imprisonment without parole. If the jury fixes the punishment at death, the court shall hold a hearing as mandated by § 13-11-3 and § 13-11-4.” 369 So.2d at 663
The fact that a statement of law appears in an opinion of the Alabama Supreme Court does not of itself require that the same be given by a trial court in its instructions to the jury. Scruggs v. State, 380 So.2d 308 (Ala.Cr.App.1979), cert. denied, 380 So.2d 313 (Ala.1980). Many times statements of law are properly made in appellate opinions which are not proper to be given as required charges to jurors in other cases. Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962).
As quoted in part V above, Beck sets forth the instructions due to be given the jury at the time it enters into deliberation at the penalty phase. The procedural and legal effect of their inability to reach a unanimous verdict is not included by the Supreme Court as a pertinent instruction to the jury. Rather, this instruction is directed to the trial court alone in the event the jury cannot agree on a sentence of death. This fact need not be divulged to the jury. State v. Adams, 277 S.C. 115, 283 S.E.2d 582 (1981).
While appellant’s requested charge was a correct statement of law, it concerned a procedural matter and was not a proper subject of instruction to the jury. The likely and undesirable effect of such an instruction would have been to give “an open invitation to the jury to avoid its responsibility and to disagree.” Justus v. Com., 220 Va. 971, 266 S.E.2d 87 (1980); see also State v. Johnson, 298 N.C. 355, 259 S.E.2d 752 (1979); State v. Hutchins, 303 N.C. 321, 279 S.E.2d 788 (1981).
VII
There was no error, as contended by appellant, in the trial judge’s refusal to recuse himself from this case. Appellant’s contention is based solely upon the fact that this same trial judge heard this case and imposed the death penalty in the appellant’s prior trial. This indicates, in appellant’s view, a pre-judgment of the appropriateness of the death penalty in the instant trial and thereby deprives appellant of a judgment based upon reason, rather than caprice or emotion.
While a true personal bias will disqualify a jury, a judicial bias, if one exists, will not disqualify a trial judge from hearing a case. Koch v. State, 401 So.2d 796 (Ala.Cr.App.), cert. denied, 401 So.2d 801 (1981). Appellant has failed to demonstrate any semblance of a personal bias on the part of the trial judge.
VIII
Appellant argues that the trial judge rested his decision to affirm the jury’s sentence of death on a non-statutory aggravating circumstance, thus rendering appellant’s sentence invalid. Appellant’s contention is factually without merit. The record reveals the following factors are included in the trial court’s recitation of aggravating circumstances:
“The Court having conducted a hearing pursuant to Title 13-11-3 of the Code of Alabama to determine whether or not the Court will sentence Mr. Thomas Warren Whisenhant to death or to life imprisonment without parole, and the Court having considered the evidence presented at the trial and said sentencing hearing; the Court makes the following findings of fact:
“The Court first considers the aggravating circumstances as outlined and described in Title 13-11-6. They are as follows:
Number one, the Court finds that the Capital Felony was committed by the Defendant while he was under sentence of imprisonment, although he was serving the latter part of his sentence on parole at the time.
“Two, the Court finds no evidence that Mr. Thomas Warren Whisenhant was previously convicted of another Capital Felony. The Court does find that the aforementioned sentence of imprisonment in Subparagraph One was a felony involving the use of violence to the person. And, in addition thereto, the Court heard uncontradicted evidence that Mr. Whisenhant murdered at least two. other women other than Cheryl Lynn Payton.
“Three, the Court finds that other than set out above in Subparagraph Two there is no creditable evidence that the Defendant did knowingly create a risk of death to other persons. However, the evidence is overwhelming that the only reason being that he was apprehended, and the Court finds convincing evidence that if the Defendant were returned to a free society that he would kill again.
“Four, the Court finds that the Capital Felony was committed shortly after the Defendant raped the deceased Cheryl Lynn Payton.
“Five, the Court finds that the Capital Felony was not committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody.
“Six, the Court finds that the Capital Felony was not committed for pecuniary, gain.
“Seven, the Court finds the Capital Felony was not committed to disrupt or hinder the legal — excuse me, the lawful exercise of any governmental function or the enforcement of laws.
“Eight, the Court is of the opinion that the Capital Felony of Cheryl Lynn Payton was especially heinous, atrocious or cruel. The Defendant with purpose, intent and design abducted the deceased from her employment at the Compac Store, then drove her to a secluded area in Mobile County, Alabama, and while raining outside his vehicle he forced her to disrobe and raped her. The Defendant then by force led the deceased to a wet wooded area adjacent to his vehicle and shot her in the head. The testimony revealed the deceased’s death as being extremely painful and cruel. As the Court has stated, it is the personal opinion of this Court that the Capital Felony was especially heinous, atrocious or cruel, but the Court has little precedent or authority which would allow it to hold, as a matter of law, that the Capital Felony meets the test of being especially heinous, atrocious or cruel as set out in the Code of Alabama. The Court is aware of the case of State v. Dixon, 283 So.2d 1, at page 9, wherein the Supreme Court of Florida in speaking on this point of especially heinous, atrocious or cruel said, and I quote:
“ ‘... Again, we feel that the meaning of such terms is a matter of common knowledge, so that an ordinary man would not have to guess at what was intended. It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the Capital Felony was accompanied by such additional acts as to set the crime apart from the norm of Capital Felonies — the conscienceless or pitiless crime which is unnecessarily tortuous to the victim.’
“If this be the legal test on this point, then this Court is led to no other conclusion from the evidence than that the Capital Felony was especially heinous, atrocious or cruel. However, since the Court is not certain as to the true legal meaning of this term, ‘heinous, atrocious or cruel,’ the Court makes no finding as a matter of law on this point.
“But the Court does find beyond a reasonable doubt that to a moral certainty that the aggravating circumstances described in Title 13-11-6 and set out here-inabove in Subparagraphs (1), (2) and (4) particularly apply to the Defendant Thomas Warren Whisenhant in this case.”
(R. 749-752)
While the trial judge earlier in his written findings upon sentencing appellant did state that the court found evidence that if appellant were returned to a free society he would kill again, the court did not find that to be, nor did it include it or rely upon it as, an aggravating circumstance to be considered in fixing appellant’s punishment at death.
Appellant’s contention as to Henry v. Wainwright, 661 F.2d 56 (5th Cir.1981), vacated and remanded for consideration, 457 U.S. 1114, 102 S.Ct. 2922, 73 L.Ed.2d 1326 (1982) is also factually without merit. There is nothing to indicate that the jury was ever allowed to entertain the idea that the alleged nonstatutory aggravating circumstances referred to above could be considered by them in determining appellant’s sentence.
IX
Appellant argues the trial court’s death qualification of the jury venire pursuant to Witherspoon, supra was error, apparently because the nine jurors who were excused on the basis of their inability to follow the law because of their personal views about capital punishment were all black. Appellant having made no demonstration to prove error and having rested on the mere assertion of error, this issue is without merit. Smith v. Balkcom, 660 F.2d 573 (5th Cir.1981), modified at 671 F.2d 858 (5th Cir.1982), cert. pending, (June 26, 1982); see also Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).
X
Despite appellant’s contention to the contrary, the Alabama Supreme Court acted constitutionally in revising Alabama’s Capital Felony statute in Beck, supra. Clisby, supra.
XI
Appellant alleges that under the Alabama law pursuant to which appellant was tried, it is impossible to have a meaningful review of the application of the death penalty to appellant because the jury was not required to state which aggravating and mitigating circumstances they considered in determining appellant’s sentence.
Under Beck, supra, when the death penalty is imposed, the trial judge must review and issue written findings of fact setting forth his determination of sentence pursuant to § 13A-5-33, Code of Alabama 1975. These written findings of the trial court, which must set forth both aggravating and mitigating circumstances, provide the basis necessary for the review of the imposition of the death penalty in all cases before this court. The Beck decision requires nothing further, nor do we believe does the United States Constitution. Proffitt, supra. Bush v. State, 431 So.2d 555 (Ala.Cr.App.1982), rehearing denied November 2, 1982.
XII
In the prosecutor’s opening statement at the penalty phase of the trial, the following factual assertions were made:
“They have used some year of 1965 when all of his troubles began. I wrote down—I quoted them, wrote it down on a legal pad. ‘This is when all of his troubles began.’ All of his troubles did not begin in 1965. He robbed a blind black lady in Prichard, Alabama and was able to ‘beat’ that charge on a technicality. He purse snatched and I think a police lieutenant will tell you about a situation with regards to another homicide in Prichard, Alabama. So, if three murders and beating someone close to death is not bad enough, we can see where he started when he was a very young man and has just been a career criminal, dangerous, violent person all of his life.” (R. 654)
No evidence concerning a blind black lady nor a purse snatching, nor another homicide was ever introduced at any phase of appellant’s trial. The prosecutor apparently made these references in anticipation of the defense introducing such evidence to demonstrate appellant’s insanity, just as the defense had done at appellant’s first trial. No such evidence was introduced by appellant at the second trial. Neither did the trial court instruct the jury to disregard these remarks as having created error. As this court has previously stated:
“It has been specifically held that remarks by the prosecutor which accuse the defendant of the commission of a crime other than that for which he is on trial and which are unsupported by any evidence in the case, require reversal. Bevins v. State, 39 Ala.App. 228, 229, 97 So.2d 572, cert. denied, 266 Ala. 695, 97 So.2d 574 (1957).”
373 So.2d at 1262
Because these remarks were made after the completion of the guilt stage of the bifurcated trial, they created no error as to appellant’s conviction. However, the penalty phase of appellant’s trial was im-permissibly prejudiced by the prosecutor’s remarks.
Appellant’s conviction and sentence having been the product of a bifurcated trial, involving two separate hearings, we do not deem it necessary to reverse appellant’s conviction. Appellant received a fair trial as to his guilt of the substantive crime and the conviction itself should be affirmed. However, due to the statements discussed above, this cause must be remanded with directions that a new sentencing hearing be held. Because the original jury has been prejudiced, the hearing must necessarily be conducted before another jury, which shall review the entire evidence presented at trial before rendering its verdict. Berard v. State, 402 So.2d 1044 (Ala.Cr.App.1981).
The capital felony law under which this case was tried, interpreted by Beck to require a bifurcated trial, does not state that the same jury which convicts a defendant must sentence him as well. While no provision was made for an appropriate decree on appeal if error was found only in the sentencing phase and not the guilt phase, we view this course as appropriate. Miller v. State, 237 Ga. 557, 229 S.E.2d 376 (1976); Rouse v. State, 222 So.2d 145 (Miss.1969); but see State v. English, 367 So.2d 815 (La.1979); Ellison v. State, 432 S.W.2d 955 (Texas 1968).
Although the trial judge and not the jury is the sentencing authority in Alabama, Beck, supra, the jury’s function is sufficiently important to require a remand for a new sentencing hearing before the jury where that phase of the trial is tainted. Beck, supra, at 659.
Other questionable remarks made by the prosecutor and argued as error by appellant are not likely to be made again at trial and will not be addressed because of our decision to remand. See, however, 16 A.L. R.2d 1137 (1967).
The guilt phase of the trial will stand. A new jury will be empaneled to review anew the evidence at the penalty phase, including all relevant aggravating and mitigating circumstances. We believe this course of action to be in keeping with the bifurcated proceeding established in Beck. The guilt phase is affirmed.
REMANDED WITH DIRECTIONS FOR A NEW SENTENCING HEARING.
All the Judges concur.
APPENDIX A
The Court now considers the mitigating circumstances as described and set out in Title 13-11-7:
Number one, the Court finds that Mr. Thomas Warren Whisenhant has a significant history of prior criminal activity.
Two, the Court finds that the Capital Felony was not committed while Mr. Whisenhant was under the influence of extreme mental or emotional disturbance; however, the Defendant was or may have been suffering from mental distress or disorder, but the Capital Felony was not the product of such disorder.
The Court finds that the victim was not a participant in Mr. Whisenhant’s conduct, and did not consent to the act.
The Court finds that Mr. Whisenhant was not an accomplice to the Capital Felony committed, but was, in fact, the person who raped and fired the shot causing the death of Cheryl Lynn Payton, deceased.
The Court finds that Mr. Whisenhant did not act under duress or under the substantial domination of another person.
The Court finds that the capacity of Mr. Whisenhant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired.
The Court having considered the aggravating circumstances and the mitigating circumstances and after weighing the aggravating circumstances and mitigating circumstances, the Court is convinced beyond a reasonable doubt and to a moral certainty and it is the judgment of the Court that the aggravating circumstances far outweigh the mitigating circumstances and that the death penalty as fixed by the jury should be and is hereby accepted.
It is therefore considered and adjudged by the Court that Thomas Warren Whisenhant is guilty of the Capital Felony charged in the indictment, and specifically of intentionally raping and killing Cheryl Lynn Payton, deceased. It is therefore ordered and adjudged that you, Thomas Warren-Whisenhant, suffer death by electrocution at any time before the hour of sunrise on the 9th day of December, 1981, inside the walls of the William C. Holman Unit of the Prison System at Atmore, Alabama, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution.
It is therefore further ordered and adjudged by the Court that the Warden of William C. Holman Unit of the Prison System at Atmore, or in case of his death, disability or absence, his Deputy, or in the event of the death, disability, or absence of both the Warden and his Deputy, then the person designated as Administrator by law for such purposes, at any time before the hour of sunrise shall on the 9th day of December, 1981, inside the walls of the William C. Holman Unit of the Prison System at Atmore, in a room arranged for the purpose of electrocuting convicts sentenced to death by electrocution, cause to pass through the body of the said Thomas Warren Whisenhant, a current of electricity of sufficient intensity to cause his, death, and the continual application of such current through the body of said Thomas Warren Whisenhant until the said Thomas Warren Whisenhant be dead, and may Almighty God have mercy on your soul.
You may take him away.
The trial court’s findings of fact and sentencing are attached as Appendix A.
The judge asked the venire this question: "Is there any member of this jury who thinks because of the seriousness of the charge that they would in any way lean more heavily or closely to the State’s side, in other words, biased against the Defendant in some way?" (R. 50) The single juror who responded affirmatively was excused from the venire.
Ex parte Thomas Warren WHISENHANT. (Re Thomas Warren Whisenhant v. State of Alabama). Ex parte State of Alabama. (Re Thomas Warren WHISENHANT v. STATE of Alabama).
82-332, 82-333.
Supreme Court of Alabama.
July 8, 1983.
Rehearing Denied Aug. 5, 1983.
John L. Carroll, Montgomery, for petitioner/ cross-respondent.
Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for respondent/ cross-petitioner.
[OPINION BY MADDOX, Justice. type=majority]
MADDOX, Justice.
These cases arise from the defendant’s second conviction under § 13-ll-2(a)(3) for the capital offense of rape-intentional killing of a Mobile woman. The Court of Criminal Appeals reversed his first conviction because of the prosecution’s improper closing argument. Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App., 1979), cert. denied 370 So.2d 1106 (Ala.1979).
At Whisenhant’s second trial, the jury found him guilty, and that same jury, after hearing evidence presented at a sentence hearing, recommended the death penalty. The trial court subsequently imposed that sentence.
The Court of Criminal Appeals affirmed the defendant’s conviction, but held that the State's attorney made improper comments during an opening statement at the penalty phase of the trial and, therefore, ordered that “[a] new jury will be empaneled to review the evidence as to the penalty phase.” 482 So.2d 1225.
This Court granted cross-petitions for certiorari. Whisenhant’s petition questions the validity of the conviction and the State’s petition questions the validity of the Court of Criminal Appeals’ judgment which required the court to hold a new sentence hearing. The parties argue the following issues in brief:
(1) Did the attorney general, during an opening statement at the sentence hearing, make improper references to prior criminal acts of the defendant when no evidence was subsequently introduced at the hearing regarding those prior acts?
(2) Should the trial court have granted the defendant’s motion to provide $3,500 for psychiatric expert witness testimony?
(3) Did the trial court improperly strike prospective jurors who expressed a hesitancy to impose the death penalty?
(4) At the sentence hearing, did the attorney general’s statement, “There is only one way, only one way you can assure that this man is in jail for the rest of his life. Put him on death row,” constitute reversible error?
(5) Did the fact that four members of the jury knew of the defendant’s prior conviction unduly prejudice Whisenhant?
(6) Should the trial court have given the submitted jury instruction that the jury could not recommend the death penalty unless they found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating circumstances?
(7) Should the trial court have given a submitted “mercy” jury instruction?
(8) The trial judge in Whisenhant’s first trial sentenced him to death; should he have disqualified or recused himself from the second trial?
(9) Did the jury’s failure to specify the aggravating and mitigating circumstances it considered during the sentence hearing destroy the validity of the sentence?
In the opinion reviewing Whisenhant’s second conviction, Judge Tyson addresses the several issues the parties raised and which we have listed above. Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982). The Court of Criminal Appeals held that no reversible error occurred at the guilt phase of the defendant’s trial, but, as we have previously stated, did find that the prosecution made improper and prejudicial statements at the trial’s penalty phase and ordered that portion of the bifurcated proceeding repeated before a different jury.
I
We first consider the state’s argument that Whisenhant is not entitled to a new sentence hearing.
The record indicates that during his opening statement at the penalty phase of the trial, the state’s attorney made references to criminal acts allegedly committed by Whisenhant on prior occasions. No party had introduced evidence of these alleged crimes during the guilt phase of the trial and the state failed to introduce any evidence regarding these prior criminal acts during the penalty phase of the trial. At the penalty phase, the defense rested without offering any evidence.
The state’s attorney moved to reopen its case to allow him to introduce evidence of the prior criminal acts, but the trial court denied the motion. The state argued at. trial, and now on appeal, that it reserved evidence regarding the prior criminal acts for use during its anticipated rebuttal to the defendant’s evidence at the trial’s penalty phase. The state argues that because Whisenhant followed the unexpected and unusual strategy of offering no evidence of mitigating circumstances at the trial’s penalty phase, the equally unusual procedure of allowing the State to reopen its case was justified. The Court of Criminal Appeals held that remarks by the prosecutor which accuse the defendant of the commission of a crime other than that for which he is on trial and which are unsupported by any evidence in the case require reversal. Bevins v. State, 39 Ala.App. 228, 229, 97 So.2d 572, cert. denied, 266 Ala. 695, 97 So.2d 574 (1957); Moreland v. State, 373 So.2d 1259, 1262, 1263 (Ala.Cr.App.1979), Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982).
This is. a correct statement of the law relative to ordinary trials to determine guilt, but it has never been applied to the penalty phase of a capital case. The state asks us to hold that the statements made by the state’s attorney during the opening of the penalty phase constituted harmless error, and urges this Court to promulgate a rule of law which would authorize the application of the harmless error rule at sentence hearings in capital cases.
We cannot tell from a review of the opinion of the Court of Criminal Appeals whether that court applied the harmless error rule or not when it decided to order a new sentence hearing. The state, by requesting that we hold the harmless error rule to be applicable to a sentence hearing in a capital case, necessarily thinks that the Court of Criminal Appeals did not apply the harmless error rule, because the state contends that its sole argument in that court was that the prosecutor’s remarks were harmless. The state asks us to remand the case to that court with directions that it consider the harmless error rule.
After consideration of the arguments, and as requested by the state, we hold that the harmless error rule does apply in capital cases at the sentence hearing, and we remand this cause to the Court of Criminal Appeals for consideration in light of our holding. See, generally, Washington v. Strickland, 693 F.2d 1243, 1262, 1264-65 (5th Cir.1982) (en banc) (violation of constitutional right to counsel during sentencing phase is harmless if state shows in context of all evidence that “it remains certain beyond a reasonable doubt that the outcome of the proceedings would not have been altered but for the ineffectiveness of counsel.”)
In Seibold v. State, 287 Ala. 549, 559, 253 So.2d 302 (1971), the Court opined:
“While we feel that Supreme Court Rule 45, Title 7, Appendix, Code 1940, Recompiled in 1958, is to be applied with great caution in capital cases, we see no reason why it should not be applied in a capital case where it is obvious that a defendant could not have probably been injured in a substantial right by a ruling.”
This Court, in Williamson v. State, 258 Ala. 24, 61 So.2d 1 (1952), a capital case, applied the harmless error rule, but found that the error committed in that case was not harmless.
After remand, the Court of Criminal Appeals will not be precluded from considering “[ojther questionable remarks made by the prosecutor and argued by appellant. ...” In short, our holding regarding the asserted errors committed at the penalty phase of the trial is that the Court of Criminal Appeals can apply the harmless error rule in determining whether prejudicial error occurred at the penalty phase of Whisenhant’s trial. Rule 45A, Ala.R. App.P. Ex parte Womack, 435 So.2d 766 (Ala.1983).
II
We now consider Whisenhant’s petition for certiorari and his argument that reversible error was committed during the guilt and penalty phases of his trial.
We have examined the opinion of the Court of Criminal Appeals, and we hold, as follows:
(1) We affirm that court’s holding that the trial court did not err in denying Whisenhant’s motion for funds to employ two named independent psychiatrists of Whisenhant’s own choice in the matter of his sanity.
(2) We affirm the judgment of that court which holds that the trial court did not err in excluding certain jurors from the jury based upon their expressed opposition to the imposition of capital punishment.
(3) We affirm the Court of Criminal Appeals’ judgment that no errors occurred when the trial court allowed four prospective jurors, who knew or were told that appellant had been previously convicted of the offense for which he was then being retried, to serve as trial jurors.
(4) The Court of Criminal Appeals did not err in holding that “the fact that due process protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged is not relevant under Beck [Beck v. State, 396 So.2d 645 (Ala.1980) ] as to weighing aggravating and mitigating circumstances at the sentence determining phase.”
(5) We affirm the holding of the Court of Criminal Appeals that the trial court did not err in refusing to instruct the jury that:
“If you see fit, whether mitigating circumstances exist or not, you may recommend mercy for the defendant. This recommendation is solely in your discretion and not controlled by any rule of law. You may make such recommendation with or without a reason.”
(6) We affirm the holding of the Court of Criminal Appeals that the trial court did not err in refusing to charge the jury, as follows:
“In this proceeding, if your verdict is not unanimous the defendant will be sentenced to life imprisonment without the possibility of parole.”
(7) The Court of Criminal Appeals correctly held that the trial judge was not disqualified because he was the same trial judge who had heard the case and imposed the death penalty in Whisenhant’s prior trial.
(8) We hold, as did the Court of Criminal Appeals, that the jurors were not required to state which aggravating and mitigating circumstances they weighed in recommending Whisenhant’s sentence of death.
Based on the foregoing, the judgment of the Court of Criminal Appeals is affirmed in all respects, except that portion which remanded the case to the trial court for a new sentence hearing.
AFFIRMED, IN PART; REMANDED WITH DIRECTIONS.
TORBERT, C.J., and FAULKNER, AL-MON, SHORES, EMBRY, BEATTY and ADAMS, JJ., concur.
JONES, J., dissents.
[OPINION BY JONES, Justice type=dissent]
JONES, Justice
(dissenting).
I respectfully dissent. My dissent does not reflect disagreement with the abstract proposition that the “harmless error” rule applies in capital cases. Indeed, I find no policy reasons for excluding application of ARAP 45 to either the guilt phase or the sentencing phase of a capital trial.
My disagreement with the majority is grounded on the absence of any factual basis for the application of that rule; i.e., under the posture of the instant case, there is no field of operation for “harmless error.” The error, which the Court of Criminal Appeals found to be of such a nature and degree as to require reversal, was neither cured nor waived. I believe the Court of Criminal Appeals reversed as to the sentencing proceedings because it found prejudicial error; and I think correctly so. I would affirm.
While I do not quarrel with the majority’s reference to Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982), it should be noted that that case does not deal directly with the “harmless error” rule. Washington, although using the term “harmless error,” formulates the test for determination of initial error, not “harmless error.” Any consideration of “harmless error” must proceed upon the supposition of error. The Washington Court remanded the cause to the district court for further consideration of petitioner’s claim of ineffective assistance of counsel pursuant to the standard which places the burden of persuasion on petitioner to show that counsel s allegedly ineffective assistance worked to his actual and substantial disadvantage. This test makes no presupposition of error, which is a requisite for application of our Rule 45A, ARAP, “Scope of Review in Death Cases.”
“In all cases in which the death penalty has been imposed, the court of criminal appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant. (Adopted 10-2-78, eff. 12-1-78.)"
Thomas Warren WHISENHANT v. STATE of Alabama.
1 Div. 333.
Court of Criminal Appeals of Alabama.
Aug. 30, 1983.
Rehearing Denied Oct. 4, 1983.
[OPINION BY TYSON, Judge. type=majority]
TYSON, Judge.
On original deliverance this court, 370 So.2d 1080, determined that the prosecutor’s comments accusing the appellant of other offenses in his opening statement was sufficient error to require a new sentencing hearing.
The Supreme Court of Alabama has determined that, in light of the posture in which such issue was here presented, such could constitute harmless error and has remanded this case to this court for our consideration of the record in light of this holding.
Inasmuch as the appellant rested at the sentencing hearing without offering any evidence and the State offered to reopen the case to put in evidence to support the argument made, this court does determine, in reliance on Whisenhant v. State, 482 So.2d 1241, that such argument did constitute harmless error.
We also rely upon two very recent opinions of the Supreme Court of the United States, Zant, Warden v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983) and California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 77 L.Ed.2d 1171 (1983).
In reliance on the above authorities and for the reasons stated, this court does determine that the argument here made was harmless error not requiring a second sentencing hearing.
The judgment appealed from is due to be and the same is hereby affirmed.
AFFIRMED.
All the Judges concur.
Ex parte Thomas W. WHISENHANT. (In re Thomas Warren WHISENHANT v. STATE of Alabama).
83-33.
Supreme Court of Alabama.
May 11, 1984.
As Modified on Denial of Rehearing June 15, 1984.
John L. Carroll and Morris S. Dees, Montgomery, for petitioner.
Charles A. Graddick, Atty. Gen., and Ed Carnes, Asst. Atty. Gen., for respondent.
[OPINION BY PER CURIAM. type=majority]
PER CURIAM.
Whisenhant was indicted and subsequently convicted in the Circuit Court of Mobile County of the capital offense of rape-intentional killing. He was sentenced to death on September 7, 1977, a pre-Beck sentence. Beck v. State, 365 So.2d 1006 (Ala.1978).
Petitioner’s first conviction and death sentence were reversed by the Court of Criminal Appeals in 1979. Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.), cert. denied, 370 So.2d 1106 (Ala.1979). This appeal involves the retrial after Beck, the re-conviction, and the new death sentence.
Following this new death sentence, the Court of Criminal Appeals affirmed the second conviction, but set aside the death sentence and ordered another sentence hearing before a new jury. Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982). This Court granted the petitions for certiorari of both the State and Whisenhant on February 9, 1983. We issued an opinion on July 8,1983, which affirmed the decision of the Court of Criminal Appeals affirming the conviction, but reversed that court’s decision which remanded the cause for a new sentence hearing. Whisenhant v. State, 482 So.2d 1241 (Ala.1983). In that case, this Court adopted for the first time a rule of law which would authorize the application of the harmless error rule in sentence hearings in capital cases. We then remanded the case to the Court of Criminal Appeals for a determination of whether the harmless error rule, when applied to the sentence phase of the trial, required a new sentence hearing.
On remand, the Court of Criminal Appeals affirmed petitioner’s sentence, holding that the error (improper argument of the Attorney General, which was also the basis of the reversal of the first conviction) was harmless. Whisenhant v. State, 482 So.2d 1246 (Ala.Cr.App.1983). Once again, this case is before us on petition for writ of certiorari. The granting of the petition was of right, pursuant to Rule 39(c), Alabama Rules of Appellate Procedure.
The State, the Court of Criminal Appeals, and this Court are in agreement that remarks made by the Attorney General during his opening statement at the penalty phase of the trial constitute error. During his opening statement, the Attorney General made reference to other crimes of petitioner and failed to offer any proof of those crimes. We must now decide whether such is error warranting reversal of the sentence and thus necessitating a new sentence hearing.
During his opening statement, the Attorney General made the following remarks:
“They [appellant’s counsel] have used some year of 1965 when all of his troubles began. I wrote down — I quoted them, wrote it down on a legal pad. ‘This is when all of his troubles began.’ All of his troubles did not begin in 1965. He robbed a blind black lady in Prichard, Alabama and was able to beat that charge on a technicality. He purse snatched and I think a police lieutenant will tell you about a situation with regards to another homicide in Prichard, Alabama.”
As Justice Maddox noted in Whisenhant v. State, 482 So.2d 1241 (Ala.1983), no evidence was offered during the guilt phase of the trial, and the State failed to offer any evidence of the prior crimes referred to by the Attorney General in his opening statement in the sentencing phase. When the defense rested without offering any evidence in the sentencing phase, the State’s attorney, recognizing that he was required to prove the criminal acts, moved the court to allow him to reopen the evidence to prove the crimes referred to by the Attorney General, but the court denied the motion.
The Court of Criminal Appeals based its decision that the error was harmless on the procedural strategy employed by counsel for the defendant, i.e., resting without offering any evidence. That is not the appropriate test for the application of the harmless error rule. To convert the error in this case to harmless error, the State must show beyond a reasonable doubt that the outcome would have been the same notwithstanding the failure to prove the crimes referred to by the Attorney General. Whisenhant v. State, 482 So.2d 1241 (Ala.1983); Washington v. Strickland, 693 F.2d 1243 (5th Cir.1982). This it has not done.
The Attorney General apparently believed that the knowledge of additional crimes would have some impact on the jury, or he would not have referred to them. We cannot say that it did not.
The harmless error rule is to be applied with extreme caution in capital cases. Seibold v. State, 287 Ala. 549, 253 So.2d 302 (1970). We hold that caution must also be observed when reviewing error committed at the penalty phase of the trial. After all, it is the penalty which distinguishes these cases from all other cases.
We hold, therefore, that the Court of Criminal Appeals erred in concluding that the error was harmless, and we reverse its judgment and remand the case to that court for remand to the trial court for a new sentence hearing.
The Court of Criminal Appeals, through Judge Harris, on the first appeal of this case, noted that this was one of the most horrible crimes to reach that court in a long time. We agree.
We are also mindful that this heinous crime occurred in 1976 and that the victim’s family has already been subjected to two trials and that two separate juries have recommended death for this defendant. But we also know that each time the State committed reversible error, which requires a court following the law to reverse. We can only add that we share the hope that error will not occur in the third sentence proceeding.
REVERSED AND REMANDED WITH DIRECTIONS.
TORBERT, C.J., and JONES, ALMON, SHORES, EMBRY, BEATTY, and ADAMS, JJ., concur.
MADDOX and FAULKNER, JJ., concur specially.
[OPINION BY MADDOX, Justice type=concurrence]
MADDOX, Justice
(concurring specially).
I agree that the Court of Criminal Appeals could not base its decision that the error was harmless on the procedural strategy employed by counsel for appellant, that is, resting without offering any evidence.
The state argues here that the error was harmless because the defense pursued throughout the trial and sentence hearing the strategy of “proving, reiterating, and emphasizing the petitioner’s violent nature and long criminal history,” and that the statements made by the attorney general were actually consistent with, and beneficial to, the only defense strategy of the petitioner, that of proving and emphasizing that petitioner had “such a long sordid history of violence towards women he must be crazy.” Had the Court of Criminal Appeals bottomed its determination of harmless error upon the theory advanced by the state, I would vote to affirm, but because this is a capital case, I cannot vote to affirm a judgment which is based upon what I think is an improper ground; consequently, I concur specially.
FAULKNER, J., concurs.
Thomas Warren WHISENHANT v. STATE of Alabama.
1 Div. 333.
Court of Criminal Appeals of Alabama.
June 26, 1984.
[OPINION BY TYSON, Judge. type=majority]
ON REMAND FROM SUPREME COURT OF ALABAMA
TYSON, Judge.
This cause is remanded to the Circuit Court of Mobile County, Alabama, to conduct a new sentencing hearing in this cause on authority of Whisenhant v. State, 482 So.2d 1247 (Ala.1984), rehearing overruled June 15, 1984.
REMANDED FOR NEW SENTENCING HEARING.
All the Judges concur.
Thomas Warren WHISENHANT v. STATE.
1 Div. 333.
Court of Criminal Appeals of Alabama.
Aug. 23, 1988.
Rehearing Denied Sept. 20, 1988.
Morris S. Dees and J. Richard Cohen, Montgomery, for appellant.
Don Siegelman, Atty. Gen., and Ed Carnes and William D. Little, Asst. Attys. Gen., for appellee.
[OPINION BY TYSON, Judge. type=majority]
ON RETURN TO REMAND
TYSON, Judge.
This is an appeal following a second sentencing hearing in this cause conducted pursuant to the opinion of the Supreme Court of Alabama in Ex parte Whisenhant, 482 So.2d 1247 (Ala.1984).
This appellant was first convicted and sentenced to death for the murder of Cheryl Lynn Payton in 1977. This trial was held in Jefferson County after venue was changed from Mobile County. On February 20, 1979, his conviction was reversed by this court because of an improper prosecutorial closing argument. Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.1979). This appellant was retried in August of 1981 in Mobile County and was again convicted and sentenced to death. On November 23, 1982, his conviction was affirmed, but the case was remanded for a new sentencing hearing because of prosecutorial comments in the opening statements of his sentencing hearing. Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982). On cross petitions for certiorari, the Supreme Court of the State of Alabama remanded this cause for a determination of whether the error was harmless. Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983). The Alabama Court of Criminal Appeals ruled this error harmless and affirmed the death sentence. On May 11, 1984, the Supreme Court of the State of Alabama reversed, remanding the case to this court with directions that this cause be remanded to the trial court 482 So.2d 1247 (Ala.1984). On June 26, 1984, 482 So.2d 1249, the Alabama Court of Criminal Appeals remanded this cause to the Circuit Court of Mobile County for a new sentencing hearing pursuant to the opinion of the Supreme Court of the State of Alabama in Ex parte Whisenhant, 482 So.2d 1247 (Ala.1984).
Following this hearing, the jury’s unanimous verdict recommended the death sentence be imposed. The trial judge conducted a separate hearing sentencing this appellant to death by “electrocution.” (The trial judge’s findings and order are hereinafter attached as Appendix A.) The Alabama Court of Criminal Appeals has jurisdiction in this matter pursuant to the Alabama Automatic Appeals Statute, § 12-22-150, Ala. Code (1986).
This court adopts the facts as set out in this court's original opinion of Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.1979).
From this hearing and order, this appellant raises fourteen issues in his original brief and seven issues in his appeal of this sentencing hearing. These issues will be addressed in sequence below.
I
The appellant reasserts many of the same issues which this court has previously addressed. Issues I through XII of Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982), and this court’s holding in Whisenhant v. State, supra, and Ex parte Whisenhant, 482 So.2d 1241 (Ala.1983), are dis-positive of these issues. Issues IY and V of the appellant’s original brief will hereinafter be addressed.
II
Issue IV of the appellant’s original brief was not addressed in Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982). Issue IV and issue V of the appellant’s original brief allege prejudice to this appellant and a denial of the appellant’s right to reliability in the capital sentencing process due to prosecutorial comments during the sentencing hearing. This court remanded this cause to the circuit court because of prosecutorial comments in this matter. Because of this court’s decision to remand this cause in Whisenhant v. State, supra, these issues are no longer applicable to this cause and will not be addressed by this Court. The order of a new sentencing hearing prevents the appellant from reasserting these issues due to the absence of this error in the subsequent hearing.
III
This appellant alleges that the trial judge erred in refusing to recuse himself. There was no error in the trial judge’s refusal to recuse himself in this cause. The appellant’s argument is based on a statement by the trial judge which the appellant claims shows a predisposition to reject two mitigating circumstances which the appellant planned to base his claim for a sentencing of life without parole.
This statement occurred in the trial judge’s ruling in the defendant’s motion in limine to prohibit the State from calling the victim’s husband or family members as witnesses.
The statement in question and the judge’s response to the appellant’s counsel’s motion to recuse are stated below.
“THE COURT: You all want to comment on that?
“MR. GALANOS: Yes, sir. Number one, we’re in a posture where this jury obviously will not have heard any of the facts and though identity is not in issue, D.P. could—
“THE COURT: I would be very, very surprised if the State — if this jury didn’t hear all the evidence, but go ahead.
“MR. GALANOS: D.P. can identify clothes found in the Defendant’s truck as being his wife’s clothes, D.P. can say that he left — took his wife to work that day at or about 2:30 in the afternoon and he can also relate the circumstances of her disappearance.
“THE COURT: Yeah, you know, Mr. Dees, you and I both have tried this case a number of times. I think it would be putting a strangle hold on the State that I shouldn’t do and I think it even goes back to your insanity question. The victim in this case, as I recall the evidence, was abducted with Entebbe precision and he certainly has to — you know, which an irrational person I do not believe could have formed. But he is — he’s in the position — you’re asking me to put the State in the position of not telling the jury the entire story. So, I can’t do that. So, I deny that motion.
“MR. DEES: Your Honor, at this time I renew my motion for recusal based on the remark the Court just made about the Court’s opinion of the evidence in the prior trial of the Defendant kidnapping with Entebbe precision that no irrational person could do, which means the Court has already — based on facts the Court already knows, has already got a fixed opinion as to whether the Defendant would be — would violate—
“THE COURT: Well, if that’s what you take from that remark, you’re entitled to do that, but I don’t agree with it.
“All right, the next motion—
“MR. DEES: Pardon me, sir, can I finish that for the record?
“THE COURT: You may—
“MR. DEES: That the Court has already in effect rejected mitigating circumstances number five and number six of 13 — 11— 6, Code of Alabama, 1975, which applies in this case.
“THE COURT: Well, I don’t think I have, but you have your record.
“MR. DEES: Well, you haven’t denied that motion.
“THE COURT: I deny that motion.
“MR. DEES: Thank you, sir.”
The appellant has failed to present evidence that creates a doubt as to this judge’s ability to preside over this matter with impartiality. While Canons of Judicial Ethics relating to a judge’s duty to disqualify himself has the force of law, both judges and the bar should be aware that recusal is not required on mere accusation of bias unsupported by substantial fact. Canon of Judicial Ethics, Canon 3, subd. C(1). Taylor v. Taylor, 359 So.2d 395 (Ala.Civ.App.1978); Ross v. Luton, 456 So.2d 249 (Ala.1984); Duncan v. Sherrill, 341 So.2d 946 (Ala.1977); Moreland v. State, 469 So.2d 1305, cert. denied, 469 So.2d 1305 (Ala.Cr.App.1985).
“The failure by the judge who presided at the defendant’s original capital murder trial to recuse himself at the second sentencing hearing, following reversal of the original sentencing order, was not improper, in absence of any evidence to substantiate defendant’s assertion of personal bias.” Rutledge v. State, 523 So.2d 1087 (Ala.Cr.App.1987), reversed on other grounds, Ex parte Rutledge, 523 So.2d 1118 (Ala.1988).
“While a true personal bias will disqualify a jury, a judicial bias, if one exists, will not disqualify a trial judge from hearing a case. Koch v. State, 401 So.2d 796 (Ala.Cr.App.), cert. denied, 401 So.2d 801 (1981). Appellant has failed to demonstrate any semblance of a personal bias on the part of the trial judge.” Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App.1982); Moreland v. State, 469 So.2d 1305 (Ala.Cr.App.1985); McMurphy v. State, 455 So.2d 924 (Ala.Cr.App.1984); Lokos v. State, 434 So.2d 818 (Ala.Cr.App.1982), aff’d, 434 So.2d 831 (Ala.1983). In this instance, the judge stated that his views were founded on evidence presented at the previous trial of this cause. Moreover, a personal bias is one of extra-judicial origin; thus, if any bias existed in this instance, then it would be a judicial bias. Koch v. State, supra; Ex parte White, 53 Ala.App. 377, 300 So.2d 420, 430, cert. denied, 293 Ala. 778, 300 So.2d 439 (1974). However, a careful review of the record in this cause shows that the trial judge carefully considered this appellant’s evidence relating to this appellant’s mental condition.
IV
The appellant alleges that the trial court’s denial of his motion for change of venue violated the appellant’s rights to due process of law as guaranteed by the Fourteenth Amendment to the Constitution of the United States.
Section 15-2-20, Code of Alabama, 1975, states that a defendant is entitled to a change of venue to another county if he can show to the reasonable satisfaction of the trial court that a fair and impartial trial cannot be had in the county from which the indictment is found. This appellant has the burden of proof in proving that he could not receive a fair trial in Mobile County. Acoff v. State, 50 Ala.App. 206, 278 So.2d 210 (1973); Robinson v. State, 430 So.2d 883 (Ala.Cr.App.1983); Ex parte Magwood, 426 So.2d 929 (Ala.), cert. denied, 462 U.S. 1124, 103 S.Ct. 3097, 77 L.Ed.2d 1355 (1983).
“The determination of whether or not to grant a change of venue is a matter generally left to the sound discretion of the trial court. Mathis v. State, 52 Ala.App. 668, 296 So.2d 755 (1973), cert. denied, 292 Ala. 732, 296 So.2d 764 (1974); Flurry v. State, 52 Ala.App. 64, 289 So.2d 632 (1973), cert. denied, 292 Ala. 720, 289 So.2d 644 (1974); Acoff v. State, 50 Ala.App. 206, 278 So.2d 210 (1973); Turner v. State, 410 So.2d 458 (Ala.Cr.App.1981). This is generally the law because the trial court is in the best position to weigh the evidence and ‘evaluate the prejudicial atmosphere’ surrounding the accused’s case. Botsford v. State, 54 Ala.App. 482, 309 So.2d 835, cert. denied, 293 Ala. 745, 309 So.2d 844 (1975); Burnett v. State, 350 So.2d 718 (Ala.Cr.App.1977).”
Robinson v. State, 430 S.2d 883 (Ala.Cr.App.1983); Nelson v. State, 440 So.2d 1130 (Ala.Cr.App.), cert. denied, 440 So.2d 1130 (Ala.1983). See also, Fortenberry v. State, 545 So.2d 129 (Ala.Cr.App.1988).
In reviewing the evidence presented in this cause, we find that the appellant did present evidence of news media and widespread publicity of this matter. However, we find no evidence of an inherently prejudicial climate that would prevent this appellant from receiving a “fair and impartial trial.” Robinson v. State, supra. This appellant has also failed to show that the publicity was anything but factual.
“Moreover, the passage of time cannot be ignored as a factor in bringing objectivity to trial.” Dannelly v. State, 47 Ala.App. 363, 254 So.2d 434, cert. denied, 287 Ala. 729, 254 So.2d 443 (1971); Acoff v. State, supra; Mathis v. State, supra; Robinson v. State, supra; Patton v. Yount, 467 U.S. 1025, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984).
In this cause, the trial court limited the appellant’s individual voir dire to questions concerning juror knowledge of the specific facts of the appellant’s case and of his prior sentences. (R. 431-436, 445-641) The appellant alleges that the trial court erred in this instance, but this court does not agree. There is no right to individual voir dire, even in capital cases. Bell v. State, 475 So.2d 601, 607 (Ala.Cr.App.1984), aff’d, 475 So.2d 609 (Ala.1985), cert. denied, 474 U.S. 1038, 106 S.Ct. 607, 88 L.Ed.2d 585 (1985). This error is also not supported by the record. A review of the record especially R. 22-23 and R. 405 shows that the trial court asked all the questions necessary to insure that the jurors would give this appellant a fair and impartial trial. This appellant was only restricted from asking questions regarding the nature of any publicity in front of a jury panel of twelve. This restriction was to prevent the tainting of the entire jury panel. The appellant was allowed to ask the jurors questions of pretrial publicity during individual voir dire, but the appellant also alleges that his individual voir dire was restricted (R. 448-449). A review of the record does not support this appellant’s contention. Furthermore, the trial court specifically asked the jurors to raise their hands if they felt that they could not set aside what they knew of this case and “sit as fair and impartial juror[s].” (R. 206-207, 368) All jurors who raised their hands were excused from the jury panel. Thus, there was no prejudice because the trial court properly questioned the venire members about whether they were affected by the pretrial publicity.
In reviewing this matter, we find no abuse of discretion by the trial court, nor was this appellant deprived of a fair and impartial trial. Thus, the trial court was not in error in its denial of a motion for a change of venue. Nelson v. State, supra; see also Arthur v. State, 472 So.2d 650 (Ala.Cr.App.1984), rev’d on other grounds, Ex parte Arthur, 472 So.2d 665 (Ala.1985).
V
This appellant alleges that the attorney general’s pretrial press conference constituted prosecutorial misconduct which denied this appellant of due process. The appellant alleges that this press conference violated a long standing injunction and violated the Code of Professional Responsibility of the Alabama State Bar, specifically, Disciplinary Rule 7-107.
In reviewing this appellant’s allegations of prosecutorial misconduct, this court finds that the appellant was not deprived of due process nor prejudiced in any way. The prospective jurors were polled by the trial judge prior to the jury selection process. The judge asked, “Is there any member of the jury who thinks because of the recollection that you may have about this case, whether it be from radio, television or newspaper, that it would be impossible for you to sit as a fair and impartial juror in the penalty stage of this case? That is what you have read, what you have seen or heard on television, would that in any way bias or affect you in any way from rendering a fair and impartial verdict in this case. If you feel that it would simply raise your hand.” All jurors who raised their hands were excused.
In reviewing the record, we find that the trial judge carefully considered this matter while hearing the appellant’s motion for change of venue. There was no abuse of discretion by the trial court, and the appellant was not deprived of a fair and impartial trial. Thus, the trial court properly denied the appellant’s motion for change of venue in which it considered the prejudicial effects of the news conference in question. See Robinson v. State, supra; Acoff v. State, supra; Botsford v. State, supra; Nelson v. State, supra.
VI
The appellant alleges that the trial court erred in its exclusion of juror K.S. based on her inability to impose the death penalty.
The following is juror K.S.’s testimony in response to questions asked of her regarding this issue.
“JUROR: No, I just asked one question, asked what had he done, and they told me. I didn’t ask if he was supposed to be in prison for the rest of his life and if they was going to send him to electric chair, because that really to me — I’ll tell you all now, I don’t care what they do to him. I mean, that’s bad. I don’t know the man and I could care less.
“MR. DEES: All right.
“JUROR: I mean, if he was somebody to my family, I would care, but, you know, I’m not his lawyer, I’m not his doctor or nothing else. I don’t care what you all do to him.
“MR. DEES: Well, now, let me ask you this, Karen, since you said you don’t care what they do to him, my understanding is that you — suppose it’s true that he did — what if it comes out in evidence that he did just what they said, you know, he did cut up these like this. Would you be inclined in that situation to vote death and not life imprisonment.
“MR. CARNES: Object, Your Honor. She wouldn’t have heard the evidence.
“MR. DEES: I just—
“THE COURT Broaden that. Assuming that you heard all the evidence and aggravating and mitigating circumstances, and, you know, there will be both presented to the jury, would you automatically be inclined to vote for death because of what you’ve heard.
“JUROR: Well, myself personally?
“THE COURT: Yes, ma’am.
“JUROR: I really — it’s not my place to tell somebody they should die.
“THE COURT: Well, you—
“JUROR: I mean, you know, as far as the electric chair and other people sitting down and telling somebody — you know, send them to the electric chair, they — as far as I’m concerned, the Lord did not— he don’t want you to kill people and if I tell you all to go and kill him, I might as well take him outside and shoot him in the head.
“THE COURT: Okay. Any other questions?
“MR. DEES: Are you opposed to the death penalty?
“JUROR: I don’t care if somebody else tells him to go, but myself, I’m not going to go and sit in-the jury and say send him to the death sentence.
“MR. DEES: I see.
“JUROR: But also our jails are too crowded for him to sit in our jails. So, I don’t what what you all are going to do with him.
“MR. GALANOS: Are you through, Morris?
“If there might be a situation where you might have to decide what to do with him, and what we’re trying to find out is if you were selected as a juror in this case, if you were one of the twelve people that’s going to decide this man’s fate, would you automatically because of your feelings about religion and the death penalty, would you automatically vote to impose a sentence of life without parole, regardless of what the facts were and regardless of what the law might be? Life without parole or death by electrocution, because you’re going to be limited to those two choices.
“JUROR: I guess I’ll have to say yes, because — I don’t know. You all say you’re not supposed to kill, but if I tell you all that, then I just might as well— I’m doing the same thing.
“MR. GALANOS: Okay. So, I want— you said your answer was yes. Does that mean yes, you would automatically vote to impose a penalty of life without parole, but not death by electrocution?
“JUROR: Mm-hm.
“MR. GALANOS: Well, thank you for your candor, because as Mr. Dees said, all we’re asking folks to do is just tell us how they feel.
“THE COURT: Well, look, I know you feel like you’re getting grilled by all these folks, but I’m going to have to ask you one more question now. Okay?
“JUROR: Yes, sir.
“THE COURT: Are you telling me that if the facts were presented to you that— and you listened to the facts and circumstances, that you would automatically go in, if you were on the jury, and vote for life in prison without parole? You would not even consider death by electrocution.
“MR. CARNES: I’d like to object to His Honor’s question on the'grounds that it’s not the test under (inaudible).
“THE COURT: Well, that’s the way I’m going to ask it.
“JUROR: Well, I’m not sure. Myself, I don’t believe that I should go up there and tell them to kill him, but he did it to somebody else. I mean, you know, I’m not sure.
MR. GALANOS: Can I ask you this, Karen, and again I’m not trying to give you a hard time, just trying to find out how you feel. If you’re chosen to sit on this jury and if the facts are such that the State proves what we call aggravating circumstances — those would be circumstances which indicate or tend to indicate that the appropriate punishment is death by electrocution — and those aggravating circumstances in your heart and in your mind outweigh what are called mitigating circumstances — that would be evidence that Mr. Dees would put on that would indicate or tend to indicate that the appropriate punishment should be life without parole. But if the aggravating circumstances, circumstances in favor of the death penalty, outweigh mitigating circumstances, could you — and then after the Judge charges you on the law of the case, could you vote to impose the penalty of death by electrocution as opposed to life without parole?
“JUROR: I don’t know. To me, I guess, (inaudible) it has to be done.
“MR. GALANOS: But it’s not a question of what they would do, it’s a question of what you would do.
“JUROR: That’s what I said. I don’t know what I would do. I hope I don’t have to be in the situation, I’ll tell you now.
“THE COURT: Let me assure you, sugar, there’s no one out there that wants to be in that situation.
“MR. GALANOS: Judge, I believe Mr. Carnes has a question.
“THE COURT: Go ahead, Mr. Carnes.
“MR. CARNES: Just one other thing, and I know we’re trying your patience with rephrasing. It is true that — only you know how you feel and I want you to understand that everybody here agrees that you have right to whatever feelings. We just have to find out before we select a jury certain things. You know your feelings and is it your feelings as you know them and as the Court process has been explained to you in this case, if those feelings might prevent or substantially impair you from being a juror to decide between death by electrocution and life imprisonment without parole under the facts and law you were given?
“JUROR: Would I have trouble?
“MR. CARNES: Yes, ma’am.
“JUROR: Is that what you’re asking? Yes, sir.
MR. CARNES: Would you have serious trouble.
“JUROR: Yes, sir. I would — I don’t know.
“MR. CARNES: That’s fine, I understand. I apologize for keeping on and keeping on.
“THE COURT: Anything else, gentlemen?
“MR. DEES: That’s all.
“THE COURT: All right. Karen, if you will, ask them to bring back Patricia Lee for me.
“JUROR: Yes, sir.
t(* * *
“MR. CARNES: Judge, on the basis of your observing her demeanor and her answers to those questions, we would ask that you find that her views, as you observed them, would prevent or substantially impair her from performing her duties as a juror under her oath and according to law and that you remove her for cause on that ground.
“MR. DEES: Your Honor, I would strenuously object to that.
“THE COURT: Well, she never one time said she couldn’t.
“MR. CARNES: That’s not the test, Your Honor. The test under Witherspoon-Witt is whether her views would prevent or substantially impair her from doing so and she said she would have very serious trouble.
“THE COURT: Well, that’s true, she did do that, Morris.
“MR. DEES: That’s not the sole question though. Let the Court rule on it—
“MR. CARNES: And, Your Honor, what I’m saying too is you observed her demeanor. So, you should apply the Witt and Witherspoon test based on her demeanor as well as the answer. I’ve never seen a more halting answer. She lowered her head when she was talking and she — it was very obvious that her view was very strong about the subject.
“THE COURT: Yeah, I agree. All right, I’ll strike her over the objections of Mr. Dees.”
“The standard for determining if a juror is disqualified from serving in a death penalty is whether his views would ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.’ Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985).” “It need not be shown with ‘unmistakable clarity’ that the person would automatically vote against the death penalty. Wainwright v. Witt, supra.” Freeman v. State, supra. See also Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Moreover, a finding of whether a venireman is biased “is based upon determinations of demeanor and credibility that are peculiarly within a trial judges province... .” Wainwright v. Witt, supra. “The manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words.” Reynolds v. United States, 98 U.S. 145, 156-157, 25 L.Ed. 244 (1878).
In reviewing the testimony of juror K.S., we find no error in her exclusion. Moreover, we find that it is evident from the record that her views of capital punishment would substantially impair her performance as a juror in this matter. See also Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988).
YII
The appellant alleges that prosecutorial comments in closing arguments stating that the appellant’s appeals were not exhausted, violated the appellant’s right to reliability in the capital sentencing process, as guaranteed by the Eighth and Fourteenth Amendments to the Constitution of the United States. The comments in question are as follows:
“They told you they helped law enforcement and you saw the F.B.I.- agent on there, a Mr. Boyle. What did he actually tell you. He actually told you that he gets — all this about this center starting because of Tommy Whisenhant. He actually told you he got a letter from up there at F.B.I. headquarters, find us somebody, and what was the criteria. The criteria is he’s got four murders and his appeals are exhausted. Well, his appeals aren’t exhausted. He talks to Mr. Dees and he talks to Tommy Whisenhant. Mr. Dees said, well, Whisenhant made the decision, made it himself, but he did make the decision, and he says he couldn’t have anything to gain. He didn’t have anything to gain? He’s in this courtroom right now trying to get you to consider that, and he was aware this hearing was coming up. That means Tommy Whisenhant himself knows he had something to gain and he had something to gain by doing it and he, with good common sense, decided to do it. Now, Mr. Boyle told you after they filled out that questionnaire they sent it off and he’s never heard from it again. He didn’t tell you this big foundation was started because of that. He didn’t tell you some center was started because of that, but he did tell you something that was significant as to why Tom Whisenhant would appear and answer that questionnaire and also give a deposition in court in that civil case. He enjoyed the attention. He hadn’t talked to anybody for a while. He liked folks making a fuss over him.”
This comment in no way undermines the jury’s role and allows the jurors to shift the burden of their decision to an appellate court. We find no merit to the appellant’s argument that the jurors would be biased in favor of the death penalty. In fact, the prosecutor was responding to comments made by the appellant’s witness two days earlier in order to “right the scale.” United States v. Young, 470 U.S. 1, 11, 105 S.Ct. 1038, 1044, 84 L.Ed.2d 1 (1985). In this instance, the prosecutor was attempting to point out that this appellant did not fit the proper criteria for the FBI study, and, thus, his cooperation was self-serving in that it may be considered a non-statutory mitigating circumstance on appeal.
VIII
The appellant argues that the court erred in refusing to give the appellant’s jury charge number 10 which asked that the trial court list those non-statutory mitigating circumstances supported by the evidence presented at sentencing trial. The following is the charge:
“ — First, that [appellant] had psychological and emotional problems when he committed the capital offense;
—Second, that [appellant’s] early family history contributed to his conduct.
—Third, that [appellant] has made ef- ■ forts to assist law enforcement;
—Fourth, that [appellant] has made efforts to help the victim’s family; and
—Fifth, that [appellant] has made a good adjustment to life in prison.” (T. 157; RRR. 682-687)
In reviewing the trial court’s oral charge, this court is not in agreement with the appellant.
“Refusal to give written requested charges was not error when charges were either thoroughly covered in the trial court’s oral charge, or inapplicable or abstract, or an incorrect statement of the law.” Sasser v. State, 494 So.2d 857 (Ala.Cr.App.1986); Oates v. State, 375 So.2d 1285 (Ala.Cr.App.1979).
This court has reviewed the trial court’s oral charge to the jury and finds no error. Furthermore, we find that the requested jury charge was properly refused because it was substantially covered in the trial court’s oral charge. (R. 776-804) See § 12-16-13, Code of Alabama 1975, as amended. Moreover, this argument has been rejected by this court and the Eleventh Circuit. Cochran v. State, 500 So.2d 1161, 1173-1175 (Ala.Cr.App.1984), aff’d in pertinent part, remanded on other grounds, 500 So.2d 1179, 1186 (Ala.1985), aff’d on return to remand, 500 Só.2d 1188 (Ala.Cr.App.), aff’d, 500 So.2d 1064 (Ala.1986), cert. denied, 481 U.S. 1033, 107 S.Ct. 1965, 95 L.Ed.2d 537 (1987); Tucker v. Zant, 724 F.2d 882, 891-892 (11th Cir.1984).
IX
The appellant alleges that the trial court erred in allowing the testimony of the victim’s mother during the judge’s sentencing hearing. This witness testified that the victim had expressed fear for her life after the murder of a convenience store clerk in autumn of 1975. The appellant alleges that this testimony is not relevant to the aggravating circumstances that this crime was heinous, atrocious, and cruel. The State’s contention was that it was relevant to “demonstrate the mental anguish of the victim in anticipation of what she believed to be certain death.” (RRR. 816) The trial court found that awareness of these crimes and fear of her death gave the victim in this cause reason to know that, at the time of her abduction, she would certainly be killed. This finding was proper, see Ex parte Kyzer, 399 So.2d 330 (Ala.1981); Copeland v. State, 457 So.2d 1012 (Fla.1984), cert. denied, 471 U.S. 1030, 105 S.Ct. 2051, 85 L.Ed.2d 324 (1985). See also, Preston v. State, 444 So.2d 939 (Fla.1984). The appellant also alleges that this testimony is inadmissible hearsay, and not within any hearsay exception. This is incorrect. A person’s statement asserting an emotion such as fear is admissible as a hearsay exception. C. Gamble, McElroy’s Alabama Evidence, § 263.01(11) (3d ed. 1977).
Moreover, this evidence was not before the jury, but was presented before the judge in his sentencing hearing. “The fact that, as evidence is being given ore tenus, the court overrules a party’s objection, is not, standing alone, sufficient to show that the court, on its final consideration of the case, allowed the objected to testimony, if irrelevant, immaterial, incompetent, to exert any influence upon his determination of the issue.” Joiner v. State, 232 Ala. 522, 168 So. 885 (1936). Gray v. Reynolds, 514 So.2d 973 (Ala.1987); Gaston v. Ames, 514 So.2d 877 (Ala.1987).
X
This court is required by § 13A-5-53, Code of Alabama 1975, to review the propriety of the appellant’s death sentence and to examine the record for any errors adversely affecting his conviction. We have thoroughly reviewed this record and find no errors adversely affecting this appellant’s rights. See Beck v. State, 396 So.2d 645 (Ala.1980); Rule 45A, A.R.A.P.
The trial court found the existence of four aggravating circumstances in this case: (1) “the defendant committed the capital offense of raping and murdering Cheryl Lynn Payton on October 16, 1976, while he was still under a twenty-year federal sentence of imprisonment he had received on March 14, 1966, for assault with intent to murder” which constitutes a § 13-11-6(1) aggravating circumstances. (2) “The defendant was previously convicted of three crimes which involve violence to a person, and any one of them is sufficient to establish [a § 13-11-6(2)] aggravating circumstance.” (3) “A 13A-5-49(4) aggravating circumstance does exist. The capital offense involves a rape. This defendant murdered Cheryl Lynn Payton after raping her.” (4) “Considering all of the circumstances this capital offense was especially heinous, atrocious and cruel. The heinousness, atrociousness, and cruelty in this capital offense exceeded by far that which is present in every capital offense.” (§ 13-11-6(8).)
The trial court stated in its sentencing order (which is attached to this opinion as Appendix A), that the first three aggravating circumstances are supported by the jury’s verdict and supported by the evidence in this case. The guilt of this appellant is undisputed. The final aggravating circumstance is clearly supported by the facts included in the record. The defendant did not suddenly kill Cheryl Lynn Payton without her having to suffer the anticipation of her death at the hands of her murderer. Instead, she was abducted and taken into the woods where he raped her in the cab of his pickup truck. He then marched her into the woods and shot her to death. Cheryl Lynn Payton was aware of the death of a recent victim, and she had reason to know that the appellant was going to kill her long before he did so. The body of the victim was also mutilated. These facts convince this court that this capital offense was especially heinous, atrocious, and cruel. See Grayson v. State, 479 So.2d 69 (Ala.Cr.App.1984), aff’d, 479 So.2d 76 (Ala.), cert. denied, 474 U.S. 865, 106 S.Ct. 189, 88 L.Ed.2d 157 (1985); Kennedy v. State, 472 So.2d 1092 (Ala.Cr.App. 1984), aff’d, 472 So.2d 1106 (Ala.), cert. denied, 474 U.S. 975-, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985).
The trial court did not find the existence of any statutory mitigating circumstances, but did find the following non-statutory mitigating circumstances: (1) “The fact that the defendant was under some mental or emotional disturbance at the time of the crime”; (2) “The court does and will consider the personality disorders [schizoid personality, paranoid tendencies, and necro-sadistic desires] as non-statutory mitigating circumstances and give them such weight as they deserve.” (3) “The specific details of the Defendant’s childhood and the general circumstances of his childhood are and will be considered as non-statutory mitigating circumstances.” (4) “The defendant has made a good adjustment in prison since the commission of the crime. That is true, and that is a non-statutory mitigating circumstance which is and will be considered.” (5) “The defendant also aided the family of the victim to collect damages from the Federal Government for the negligent release of the defendant from federal prison. That is also a non-statutory mitigating circumstance which is and will be considered.” “The court [also] finds that the Defendant has never felt genuine remorse and his cooperation in the civil lawsuit came while he was awaiting resentencing. His cooperation was motivated by the hope and expectation that it would be considered in his favor when he came to be resentenced. Those are the circumstances and weight due to be given it.” (6) “The defendant also aided the Federal Bureau of Investigation in a study of violent murders. That [is also] a non-statutory mitigating circumstance.”
We do not find evidence in the record that the appellant’s sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor. This court has also independently weighed the aggravating and mitigating circumstances and found that the aggravating circumstances far outweigh the mitigating circumstances. We are convinced that death is the proper sentence in this case.
This court has considered the crime, and this appellant, and finds that the appellant’s sentence of death is not disproportionate to the penalty imposed in similar cases. See Grayson; Kennedy; Thompson v. State, 503 So.2d 871 (Ala.Cr.App.1986), aff’d, 503 So.2d 887 (Ala.1987); Tarver v. State, 500 So.2d 1232 (Ala.Cr.App.1986), aff’d, 500 So.2d 1256 (Ala.), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987); Baldwin v. State, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985).
This court has carefully searched the record for plain error and we find none. The appellant’s conviction for this offense and his sentence of death are proper as herein stated.
For this reason and those cited herein, the judgment of the trial court is due to be, and it is hereby, affirmed.
OPINION EXTENDED; AFFIRMED.
All the Judges concur.
APPENDIX A
THE COURT: All right, I will read my sentence finding and order.
On August 6, 1981, the Defendant, Thomas Warren Whisenhant, was convicted by a jury of the Code of Alabama 1975, Section 13-ll-2(a)(3) capital offense of rape when the victim is intentionally killed by the Defendant. On February 24, 1987, following a separate sentence hearing, another jury returned a verdict, which is not binding on this Court, sentencing the Defendant to death. On April 2, 1987, another sentence hearing was conducted before this Court sitting without a jury.
Throughout the guilt stage and the sentence stage of this case, it has been essentially undisputed that on the evening of October 16, 1976, the Defendant abducted at gunpoint, raped and shot to death Cheryl Lynn Payton, a female convenience store clerk. The principal defense at the guilt stage was not guilty by reason of insanity. The guilt stage jury rejected that defense, and this Court independently concludes that the Defendant failed to establish at the guilt stage that he was not guilty by reason of insanity. At the sentence stage hearing, the defense presented psychiatric testimony and evidence which it did not present at the guilt stage trial five and a half years earlier. This Court concludes that even considering that additional psychiatric testimony and evidence, the defense has still failed to establish the not guilty by reason of insanity defense.
This Court is in full accord with the guilt stage verdict and hereby adjudicates the Defendant guilty of the Code of Alabama 1975, Section 13-11-2(a)(3) capital offense as charged in the indictment. The Defendant did rape Cheryl Lynn Payton and intentionally kill her, and he was not insane at the time he did so.
The aggravating circumstances that may be considered in sentencing are limited to those listed in Code of Alabama 1975, Section 13-11-6. The Court finds that four of them have beenn proven beyond a reasonable doubt and to a moral certainty. Indeed, their existence was conceded by the defense at various times throughout the sentence proceeding before the jury.
The Section 13-11-6(1) aggravating circumstance does exist. When the Defendant committed the capital offense of raping and murdering Cheryl Lynn Payton on October 16,1976, he was still under a twenty-year federal sentence of imprisonment he had received on March 14, 1966, for assault with intent to murder. He had been paroled on November 28, 1973, but for purposes of the Section 13-11-6(1) aggravating circumstance he was still, quote, under sentence of imprisonment, close quotes.
The Section 13-11-6(2) aggravating circumstance also exists. The Defendant was previously convicted of three crimes which involve violence to the person, and any one of them is sufficient to establish this aggravating circumstance. In 1966, he was convicted for assault with intent to murder, as has already been discussed. In 1981, he plead guilty to and was convicted of two first degree murders, the 1975 murder of Patricia Hitt and the 1976 murder of Venora Hyatt.
The Section 13-11-6(3) aggravating circumstance does not exist.
The Section 13-11-6(4) aggravating circumstances does exist. The capital offense involved rape. The Defendant murdered Cheryl Lynn Payton after raping her.
The Section 13-11-6(5) aggravating circumstance does not exist.
The Section 13-11-6(6) aggravating circumstance does not exist.
The Section 13-11-6(7) aggravating circumstances does not exist.
The Section 13-11-6(8) aggravating circumstance does exist. The Defendant did not suddenly kill Cheryl Lynn Payton without her having an opportunity to suffer the anticipation of her death at the hands of a murderer. Instead, the Defendant abducted her; he drove her to an isolated spot; because it was raining, he raped her in the cab of his pickup truck so he would not get wet; he marched the terrified victim out of the truck; and he shot her to death. Cheryl Lynn Payton knew that two other female convenience store clerks in Mobile had been murdered in the preceding year. She knew that the more recent victim had been abducted and that after she had been killed, her body had been mutilated. Cheryl Lynn Payton was afraid that she, too, would be abducted and murdered. As she was being abducted, as she was being taken to an isolated spot, as she was being raped, and as she was taken from the Defendant’s truck, Cheryl Lynn Payton was terrified. She had reason to know that she was going to die long before the Defendant actually killed her. Considering all the circumstances, this capital offense was especially heinous, atrocious and cruel. The heinousness, atrociousness, and cruelty in this capital offense exceeded by far that which is present in every capital offense.
The statutory mitigating circumstances to be considered are set out in Code of Alabama 1975, Section 13-11-7. During the sentence hearing before the jury the Defense aspecificaly requested that the Court not instruct the jury on Sections 13-11-7(1), (3), (4), (5) and (7) mitigating circumstances, thereby effectively conceding that those five statutory mitigating circumstances do not exist. In addition, the Court finds, independently of that concession, that Section 13-11-7(1), (3), (4), (5) and (7) mitigating circumstances do not exist. The evidence does not establish the existence of any of those five mitigating circumstances and instead establishes that they do not exist.
The parties vigorously disagree on the issue of whether the Section 13-11-7(2) mitigating circumstances exists, and the evidence is in conflict. After hearing all of the evidence, including but not limited to the expert testimony, and after considering all of the evidence carefully and making the necessary credibility decisions based on demeanor and other factors, this Court finds that the capital offense was not committed while the Defendant was under the influence of extreme mental or emotional disturbance. The evidence does not establish that that statutory mitigating circumstance exists, and in fact the evidence establishes that it does not exist. The Defendant was under some mental or emotional disturbance at the time of the crime, but it was not extreme. The fact that the Defendant was under some mental or emotional disturbance at the time of the crime, will be and is considered as a non-statutory mitigating circumstance.
The parties also vigorously disagree on the issue of whether Section 13-11-7(6) mitigating circumstance exists, and the evidence is in conflict. After hearing and considering all the evidence, both the expert testimony and the other evidence, and making the necessary credibility and other decisions to resolve the conflicts and after considering the demeanor of the witnesses, this Court finds that the capacity of the Defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was not substantially impaired at the time of the crime. The evidence does not establish that that statutory mitigating circumstance exists. Instead, the evidence establishes that it does not exist. Contrary to the Defense contentions, the Defendant is not a paranoid schizophrenic or otherwise psychotic, and he was not at the time of the crime. He was suffering from “episodic discontrol” at the time of the crime.
The Defense has asked the Court to find that the Defendant has a long history of emotional and mental illness that contributed to the crime. The evidence does not establish that and instead establishes the contrary.
This does not mean that the Defendant is normal. He is and was schizoid, which means he is detached. That does not mean that he had no friends; he did have some. He got along well with some of his neighbors and co-workers. The Defendant is and was paranoid, which means he has persecutorial delusions. He also has necro-sadistic tendencies, which means he likes to cut up on or abuse dead bodies. He displayed those necro-sadistic tendencies when he returned to Cheryl Lynn Payton’s body the day after he murdered her and cut on it with a knife. The rape and murder of Cheryl Lynn Payton was not caused by the Defendant’s schizoid personality, or by his paranoid tendencies, or by his necro-sadistic desire. Nonetheless, the Court does and will consider those personality disorders as non-statutory mitigating circumstances and give them such weight as they deserve.
The evidence also establishes that the Defendant is a psychopath or criminal personality type. That means he does not abide by the laws of society and does not care about others. It is not a non-statutory mitigating circumstance.
The Defense has also asked the Court to find that the Defendant’s disturbed childhood was a contributing factor to his commission of the crime. The evidence does not establish that conclusion, and the evidence establishes the contrary. This does not mean that the Defendant did not have what could be characterized as a disturbed childhood. He had an alcoholic father who was derided by his mother. His parents fought a lot. His mother was apparently overbearing. The evidence is that he slept in the same bed with his mother until he was five years old and in the same room with her until he was about sixteen years old. All those specific details of the Defendant’s childhood and the general circumstances of his childhood are and will be considered as non-statutory mitigating circumstances.
There is no evidence that the Defendant was sexually abused by his mother or father, and there is no credible evidence that he was ever sexually abused by anyone.
All of the Court’s findings concerning the mental and emotional mitigating circumstances, both statutory and non-statutory, are based upon a consideration of all the evidence. However, the Defendant has a new trial motion pending concerning Dr. Rudder and certain undisclosed information concerning him which the Defendant contends impeaches Dr. Rudder’s testimony. Indeed, much of the April 2, 1987 sentence hearing before the Court was taken up with evidence going to the new trial motion. The Court has not yet ruled on that new trial motion. However, out of an abundance of caution, the Court has considered all of the evidence minus the testimony of Dr. Rudder. The Court finds that all of its mitigating circumstance findings are the same even when Dr. Rudder’s testimony is totally disregarded or assumed away. His testimony does not make any difference on any mitigating circumstance issue, and the total absence of Dr. Rudder’s testimony would not change the resolution of any mitigating circumstance issue.
The Defense has asked the Court to find that the Defendant has made a good adjustment in prison since the commission of the crime. That is true, and that is a non-statutory mitigating circumstance which is and will be considered.
The Defense has also asked the Court to find that the Defendant, quote, aided the victim’s family in their attempt to collect damages from the Federal Government for the negligent release of the Defendant from federal prison, close quote. That is true, and that is a non-statutory mitigating circumstance which is and will be considered. However, in determining how much weight to give this particular mitigating circumstance the Court notes that the Defendant's cooperation was not for purely humanitarian reasons nor was it motivated by genuine feelings of remorse. The Court finds that the Defendant has never felt genuine remorse, and his cooperation in the civil lawsuit came while he was awaiting resentencing. His cooperation was motivated by the hope and expectation that it would be considered his favor when he came to be resentenced. Those are the circumstances underlying this particular mitigating circumstance and weight due to be given it.
The Defense has also requested this Court to find as a non-statutory mitigating circumstance that the Defendant aided the Federal Bureau of Investigation in a study of violent murders. That is true, and it is and will be considered as a mitigating circumstance.
These are all the non-statutory mitigating circumstances Defense has asked this Court to consider. In addition, the Court has considered every aspect of the Defendant’s character, and his record, and every circumstance of the crime that might call for a sentence other than death.
Having found the aggravating and mitigating circumstances, the Court now proceeds to weigh them against each other in order to determine sentencing. In doing so, the Court is aware that it is not bound by the jury’s sentence verdict. The Court finds the four aggravating circumstances that exist in this case far outweigh all the mitigating circumstances and that the proper sentence is death.
Indeed, the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt and to a moral certainty.
Accordingly, it is hereby ORDERED, ADJUDGED and DECREED that Thomas Warren Whisenhant is guilty of the Code of Alabama 1975, Section 13-ll-2(a)(3) capital offense of rape when the victim is intentionally killed, as charged in the indictment.
It is further ORDERED, ADJUDGED and DECREED that Thomas Warren Whisenhant is sentenced to death by electrocution. Pursuant to Alabama Rules of Appellate Procedure 8(d)(1), the date of the execution is to be set by the Alabama Supreme Court at the appropriate time.
Done this the 23rd day of April, 1987.
Now, Mr. — go ahead.
MR. CARNES: Judge, there was two things, I believe you may have misspoke. In regard to the sixth statutory mitigating circumstance, I understood everything until at the end you said he was suffering from episodic discontrol at the time of the crime, which was contrary to everything you’d said before. I believe what you meant to say is he or the Defendant was not suffering from episodic discontrol at the time of the crime.
THE COURT: He was not suffering is what I should have said, if I didn’t say that.
MR. CARNES: Yes, sir. One other thing—
THE COURT: On page five. All right?
MR. CARNES: Yeah, that’s fine.
The other thing was there was — Mr. Galanos has pointed out, I believe you misspoke one other point when you said that the evidence establishes that the Defendant is a — I believe you said psychopath, but you must have meant to say sociopath or criminal personality type.
THE COURT: I did.
MR. CARNES: Since you had previously said that he wasn’t paranoid schizophrenic.
THE COURT: I did. What page is that on?
MR. CARNES: It’s on my page seven, Your Honor, the top of my seven. I’m not sure — that was before the disturbed childhood contributing factor to the commission of the crime. No evidence he was sexually abused. There is something about sociopath and it comes right after—
MR. GALANOS: It’s that paragraph,' Your Honor, which reads, “The evidence also establishes that the Defendant is a sociopath or criminal personality type. That means he does not abide by the laws of society and does not care about others.”
THE COURT: Isn’t that exactly what I said?
MR. GALANOS: No, sir. My note reflects that you said psychopath as opposed to sociopath.
THE COURT: Well, I should have said sociopath.
MR. CARNES: That’s all we have, Judge.
THE COURT: All right, the only thing left for me to do is rule on the motion for a new trial and I will do that within the next seven days based on everything that I’ve heard, and if either side wishes to submit to me a brief, fine, and I will issue an order within seven days.
MR. DEES: Your Honor, I’d like to state to the Court that the evidence we rely on is the evidence that came out at the hearing before the Court.
THE COURT: I realize that.
MR. DEES: And, Your Honor, on the question of attorneys’ fees, the State has agreed that the attorneys’ fee requests are reasonable, with the exception of Dr. — with the exception of Dr. Brown and we agreed by agreement just to collect the $2200.00 in the Court’s previous order.
MR. CARNES: Which would be a reduction of $980.00.
MR. DEES: Well, I think he may bill the State for the time they spent with him. So, that’s—
MR. CARNES: I understand that. That’s no problem. Your Honor—
MR. DEES: And, Your Honor, the other—
MR. CARNES: I’m sorry. Are you through with the attorney fee part?
MR. DEES: No, sir. Give me a second.
MR. CARNES: Go ahead.
MR. DEES: The other question, Your Honor, when I first got in the case this last time I introduced Mr. Cohen and the Court said that he could enter the case pro hac vice and I—
THE COURT: No question about that.
MR. DEES: I knew that and I don’t know whether we need a written order on that or not.
THE COURT: No.
MR. DEES: I didn’t think so.
MR. CARNES: That’s fine for everybody here concerned, but the comptroller is not as reasonable as Your Honor is. Before he will pay that, he will have to have an appointment for the people who he’s paying.
THE COURT: Well, draw up an order—
MR. DEES: I’ll draw up an order.
THE COURT: —and I’ll sign it.
All right. Good day, gentlemen.
******
Ex Parte Thomas Warren WHISENHANT. (Re Thomas Warren Whisenhant v. State of Alabama).
88-10.
Supreme Court of Alabama.
Sept. 15, 1989.
Rehearing Denied Dec. 22, 1989.
Morris S. Dees and J. Richard Cohen, Montgomery, for petitioner.
Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for respondent.
[OPINION BY KENNEDY, Justice. type=majority]
KENNEDY, Justice.
Thomas Warren Whisenhant was first convicted and sentenced to death in 1977 for the rape and murder of Cheryl Lynn Payton, which occurred in Mobile County. The facts of the murder are set out in Whisenhant v. State, 370 So.2d 1080 (Ala. Cr.App.1979), and the statement of facts in that opinion is adopted by this Court as if fully set out herein.
Whisenhant’s first trial was conducted in Jefferson County, after a motion for change of venue was granted by the trial judge. The Court of Criminal Appeals reversed the conviction because of improper argument by the prosecutor. In 1981, Whisenhant was retried, this time in Mobile County, and was again convicted and sentenced to death. The Court of Criminal Appeals affirmed his conviction, but reversed his sentence because the prosecutor, in his opening statement at the sentencing phase, accused Whisenhant of having committed other crimes, evidence of which had not been introduced during trial. This Court then granted cross-petitions for certiorari and remanded to the Court of Criminal Appeals for a determination of whether the prosecutor’s remarks were harmless error. The Court of Criminal Appeals ruled that the remarks were harmless error and thereby affirmed the sentence. On return from remand, this Court held that the error caused by the prosecutor’s remarks was not harmless and remanded the case to the Court of Criminal Appeals with instructions that the case be remanded to the trial court for a new sentencing trial. After remand by the Court of Criminal Appeals, Whisenhant received another sentencing trial, and the jury recommended that he be given the death penalty. The trial court accepted the jury’s recommendation and sentenced Whisenhant for the third time to death by electrocution. The Court of Criminal Appeals affirmed the sentence and we, by this opinion, affirm the judgment of the Court of Criminal Appeals.
Whisenhant raises the following issues:
(1) Was the trial judge’s refusal to recuse himself a violation of the defendant’s constitutional rights?
(2) Did the trial court commit reversible error by refusing to change the venue of the trial from Mobile County?
(3) Did Attorney General Siegelman violate the constitutional rights of the defendant when he called a press conference to discuss the case 15 days before trial?
(4) Was the trial court in error when it disqualified a veniremember because of her hesitancy to impose the death penalty?
(5) Did the prosecutor commit reversible error when he referred to the appeals process in closing argument?
(6) Did the trial court improperly refuse to give the defendant’s requested jury instructions on nonstatutory mitigating circumstances?
(7) Did the admission of testimony of the victim’s mother violate the defendant’s constitutional rights?
I. MOTION TO RECUSE
Circuit Judge Ferrill McRae presided over the first and second sentencing trials and, in each case, accepted the jury’s recommendation that Whisenhant be sentenced to death. Judge McRae also presided over the third sentencing trial.
Prior to the third sentencing trial, Judge McRae responded as follows to a motion in limine by the defendant regarding the admissibility of certain evidence offered by the state:
“THE COURT: Yeah, you know, Mr. Dees, you and I both have tried this case a number of times. I think it would be putting a stranglehold on the State that I shouldn’t do and I think it even goes back to your insanity question. The victim in this case, as I recall the evidence, was abducted with Entebbe precision and he certainly has to — you know, which an irrational person I do not believe could have formed. But he is — he’s in the position — you’re asking me to put the State in the position of not telling the jury the entire story. So, I can’t do that. So, I deny that motion.”
Based on these remarks, the defendant immediately made a motion for recusal, arguing that the judge had a fixed opinion regarding the mitigating circumstance of a capital offense “committed while the defendant was under the influence of extreme mental or emotional disturbance,” Code 1975, § 13A-5-51(2), or a capital offense committed when the defendant could not “appreciate the criminality of his conduct” or “conform his conduct to the requirements of the law,” Code 1975, § 13A-5-51(6).
The statements by the trial judge did not provide grounds for recusal. Rather, they occurred in response to a motion by the defendant to prohibit the family of Cheryl Lynn Payton from testifying. His comments were a reflection of his knowledge of the case and reflected no personal enmity. To disqualify a judge for bias, the bias must be shown to be personal. Ex parte Large, 501 So.2d 1208, 1210-11 (Ala.1986). A search of the record reveals no personal bias on the part of the trial judge towards the defendant.
In addition, the fact that the trial judge had presided over the defendant’s previous two sentencing trials was not grounds for disqualification. A trial judge need not recuse himself solely on the ground that he was the “same trial judge who had heard the case and imposed the death penalty” in a defendant’s prior trial. Ex parte Whisenhant, 482 So.2d 1241, 1245 (Ala.1983).
II. CHANGE OF VENUE
The defendant argues that the trial judge committed reversible error by refusing to change the venue of the trial; that for the same reasons the original trial was moved to Jefferson County from Mobile County, this trial should also have been moved; and that a high percentage of those living in Mobile County were predisposed to favoring the death penalty because of unfavorable publicity in the Mobile area regarding this case.
Code 1975, § 15-2-20(a), states the following:
“(a) Any person charged with an indictable offense may have his trial removed to another county, on making application to the court, setting forth specifically the reasons why he cannot have a fair and impartial trial in the county in which the indictment is found. The application must be sworn to by him and must be made as early as practicable before the trial, or it may be made after conviction upon a new trial being granted.”
To ensure that the defendant has a fair and impartial jury, it is not necessary that the veniremembers be totally ignorant of the facts surrounding the case. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 724, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961).
In 1977, the publicity surrounding the the murder of Cheryl Lynn Payton and the ensuing trial of Thomas Whisenhant was very intense. However, 10 years had passed from the time of the murder to the third sentencing trial. This 10-year period is significant, because it allowed the details of the case to fade from the minds of potential jurors. “That time soothes and erases is a perfectly natural phenomenon to all.” Patton v. Yount, 467 U.S. 1025, 1033, 104 S.Ct. 2885, 2889, 81 L.Ed.2d 847 (1984). From the record, it is obvious that the passage of 10 years had dulled the memories of most of the veniremembers. The record reveals that although many jurors had a rudimentary knowledge of Whisenhant and what he had done, very few remembered whether he had received a sentence of life imprisonment or of death. Those who did remember the sentence were properly excused by the trial court.
III. STATEMENTS OF THE ATTORNEY GENERAL
Fifteen days before this third sentencing trial, Attorney General Don Siegelman called a press conference in Mobile. The press conference received extensive media coverage and was preceded by the issuance of a press release, which was circulated to the Mobile news media. At the press conference, Siegelman announced that an attorney from his office (Tom Sorrells) was joining the Mobile district attorney to “make this retrial the last one for Thomas Whisenhant.” Siegelman said that he had instructed the state’s attorneys to seek the death penalty because “there are some crimes that are so outrageous and offend the moral standards of society to such an extent that capital punishment is an appropriate penalty. This is clearly such a case.”
The trial court, through careful questioning, was able to determine that all but one veniremember could not remember the attorney general’s statements. The one veniremember who did remember them was excused by the trial judge. Therefore, we find that the attorney general’s press conference did not deprive the defendant of his due process rights.
IV. QUESTIONING OF PROSPECTIVE JURORS
At the sentencing trial, the court allowed the defendant to question prospective jurors individually about what they knew about the specific facts of the defendant’s previous trials. The defendant admits that individual voir dire was allowed, but contends that the court was unduly restrictive in not allowing him to question prospective jurors about the effect of pretrial publicity on their ability to sentence the defendant in an impartial manner.
The jurors were also interviewed in panels of 12; during that process the defendant was restricted from asking questions about pretrial publicity in front of these 12-member panels. This was done to ensure that these panels would not be tainted by the statement(s) of a single juror.
To those who had heard of the case from the media, Judge McRae then stated the following:
“Has any member of this jury seen anything about this case on television, read anything about this case in the newspaper or seen or heard anything about this case on television and, if so, please stand. All right.
“Is there any member of this jury who thinks because of the recollection that you have about this case, whether it be from the radio, television or newspaper, that it would be impossible for you to sit as a fair and impartial juror in this penalty stage of this particular case? That is, what you have read, what you have seen or seen and heard on television, would that in any way bias or affect you in any way from rendering a fair and impartial verdict in this case? If you feel that it would, simply raise your hand.”
Having reviewed the record, we agree with the Court of Criminal Appeals “that the trial court asked all the questions necessary to insure that the jurors would give this appellant a fair and impartial trial.” Those jurors who felt that they could not listen impartially, those who knew of Attorney General Siegelman’s press conference, and those who knew that the defendant had received the death penalty in a prior trial were excused from the venire. Therefore, we agree with the Court of Criminal Appeals that the defendant had a fair and impartial jury and that the trial court was correct in refusing to change the venue of the trial.
V. JUROR KAREN STEADHAM
The defendant argues that the trial court committed reversible error when it excused juror K.S. from the venire. After being asked about her ability to impose the death penalty, S. responded as follows:
“JUROR: I really — it’s not my place to tell somebody they should die.
“THE COURT: Well, you—
“JUROR: I mean, you know, as far as the electric chair and other people sitting down and telling somebody — you send them to the electric chair, they — as far as I’m concerned, the Lord did not — he don’t want you to kill people and if I tell you all to go and kill him, I might as well take him outside and shoot him in the head.
“THE COURT: Okay. Any other questions?
“MR. DEES: Are you opposed to the death penalty?
“JUROR: I don’t care if somebody else tells him to go, but myself, I’m not going to go and sit in the jury and say send him to the death sentence.
“MR. DEES: I see.
“JUROR: But also our jails are too crowded for him to sit in our jails. So, I don’t know what you all are going to do with him.
“MR. GALANOS: Are you through, Morris?
“If there might be a situation where you might have to decide what to do with him, and what we’re trying to find out is if you were selected as a juror in this case, if you were one of the twelve people that’s going to decide this man’s fate, would you automatically because of your feelings about religion and the death penalty, would you automatically vote to impose a sentence of life without parole, regardless of what the facts were and regardless of what the law may be? Life without parole or death by electrocution, because you’re going to be limited to those two choices.
“JUROR: I guess I’ll have to say yes, because — I don’t know. You all say you’re not supposed to kill, but if I tell you all that, then I just might as well— I’m doing the same thing.
“MR. GALANOS: Okay. So, I want— you said your answer was yes. Does that mean yes, you would automatically vote to impose a penalty of life without parole, but not death by electrocution?
“JUROR: Mm-hm.
“MR. GALANOS: Well, thank you for your candor, because as Mr. Dees said, all we’re asking folks to do is just tell us how they feel.
“THE COURT: Well, look, I know you feel like you’re getting grilled by all these folks, but I’m going to have to ask you one more question now. Okay?
“JUROR: Yes, sir.
“THE COURT: Are you telling me that if the facts were presented to you that — and you listened to the facts and circumstances, that you would automatically go in, if you were on the jury, and vote for life in prison without parole? You would not even consider death by electrocution?
“MR. CARNES: I’d like to object to His Honor’s question on the grounds that it’s not the test under (inaudible).
“THE COURT: Well, that’s the way I’m going to ask it.
“JUROR: Well, I’m not sure. Myself, I don’t believe that I should go up there and tell them to kill him, but he did it to somebody else. I mean, you know, I’m not sure.
“MR. GALANOS: Can I ask you this, Karen, and again I’m not trying to give you a hard time, just trying to find out how you feel. If you’re chosen to sit on this jury and if the facts are such that the State proves what we call aggravating circumstances — those would be circumstances which indicate or tend to indicate that the appropriate punishment is death by electrocution — and those aggravating circumstances in your heart and in your mind outweigh what are called mitigating circumstances — that would be evidence that Mr. Dees would put on that would indicate or tend to indicate that the appropriate punishment should be life without parole. But if the aggravating circumstances, circumstances in favor of the death outweigh mitigating circumstances, could you — and then after the Judge charges you on the law of the case, could you vote to impose the penalty of death by electrocution as opposed to life without parole?
“JUROR: I don’t know. To me, I guess (inaudible) it has to be done.
“MR. GALANOS: But it’s not a question of what they would do, it’s a question of what you would do.
“JUROR: That’s what I said. I don’t know what I would do. I hope I don’t have to be in the situation, I’ll tell you now.”
The proper test for determining whether a prospective juror may be removed for cause for her views on capital punishment is whether her views would “ ‘prevent or substantially impair’ ” her from properly performing her duties as a juror. Wainwright v. Witt, 469 U.S. 412, 423, 105 S.Ct. 844, 851, 83 L.Ed.2d 841 (1985), quoting Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2526, 65 L.Ed.2d 581 (1980). The defendant contends that S.’s views on capital punishment could not be determined with certainty. However, a blanket declaration of support of or opposition to the death penalty is not necessary for a trial judge to disqualify a juror.
“Veniremen simply cannot be asked enough questions to reach the point where their bias has been made unmistakably clear; these veniremen may not know how they will react when faced with imposing the death sentence, or may be unable to articulate, or may wish to hide their true feelings. Despite this lack of clarity in the printed record, however, there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law. For reasons that will be developed more fully infra, this is why deference must be paid to the trial judge who sees and hears the juror.”
Wainwright, 469 U.S. at 423-26, 105 S.Ct. at 851-54.
Based on K.S.’s responses, we find that her views on capital punishment made her “unable to faithfully and impartially apply the law.” Therefore, the trial court was correct in excluding her from the venire.
VI. PROSECUTOR’S CLOSING ARGUMENT
The defendant argues that the prosecutor, in his closing argument, “improperly minimized the jury’s sense of responsibility for determining the appropriateness of a death sentence” by arguing the following:
“They told you he helped law enforcement and you saw the F.B.I. agent on there, a Mr. Boyle. What did he actually tell you? He actually told you that he gets — all this about this center starting because of Tommy Whisenhant. He actually told you he got a letter from up there at F.B.I. headquarters, find us somebody, and what was the criteria? The criteria is he’s got four murders and his appeals are exhausted. Well, his appeals aren’t exhausted. He talks to Mr. Dees and he talks to Tommy Whisenhant. Mr. Dees said, Whisenhant made the decision, made it himself, but he did make the decision, and he says he couldn’t have anything to gain. He didn’t have anything to gain? He’s in this courtroom right now trying to get you to consider that, and he was aware this hearing was coming up. That means Tommy Whisenhant himself knows he had something to gain and he had something to gain by doing it and he, with good common sense, decided to do it. Now, Mr. Boyle told you after they filled out that questionnaire they sent it off and he’s never heard from it again. He didn’t tell you this big foundation was started because of that. He didn’t tell you some center was started because of that, but he did tell you something that was significant as to why Tom Whisenhant would appear and answer that questionnaire and also give a deposition in court in that civil case. He enjoyed the attention. He hadn’t talked to anybody for a while. He liked folks making a fuss over him.”
The State contends that it was not attempting to minimize the jury’s role in the capital sentencing process, but was responding to the following arguments by the defendant that the jury should find Whisenhant’s participation in an F.B.I. study of multiple murderers to be a mitigating circumstance:
“Secondly, we’re talking about the fact that Thomas Whisenhant has done something since he’s been in prison that you can consider as a valid mitigating circumstance, that he has made an effort to help law enforcement when he dealt with the F.B.I., and you heard the F.B.I.’s testimony.
“Now, let’s talk about Tommy Whisenhant helping law enforcement. You heard an F.B.I. agent say, first of all, that he is not an expert and he couldn’t tell you whether Tommy was sane or insane. He said, I’m not a psychiatrist. He said, he acted like a rational man when I was talking to him. Well, nobody doubts that. That’s a red herring, if you believe him acting like a rational man makes a difference.
“Tommy gave evidence in 1982, six hours of interview to the National Center for Violent Crime, and you heard the F.B.I. agent tell you how that was important. You know what, you know how Tommy Whisenhant was caught? Think about how important it was. Tommy was caught because he went back to the scene. Now, let’s just suppose his report was in the evidence that he gave, and let’s say the Mobile Police Department came upon a mutilated body like this, they fed it into that computer real quick and tied it in to the National Center for the Prevention of Violent Crimes and they popped it back and they said there’s some things you need to think about. They’ll tell a few and one of them was, he’ll probably return to the scene, because they would have put that he cut on the body while it was dead. Do you know what, the first murder, Mrs. Hyatt, Mrs. Payton may still be. All they’d had to have done was stake out the scene. That’s what — that’s what the purpose of that program is, to find what these people do and then that’s why it’s valuable.
“Now, Tommy — are you going to penalize Tommy Whisenhant now because he participated in a program and say, well, that’s self-serving. He just did that to help himself. You didn’t hear the F.B.I. agent say that and Tommy didn’t have to do that. He participated in that and hopefully it will mean something and hopefully they will come — they will be able to come back and get some information from Tommy later, because you heard the F.B.I. agent say that the study wasn’t complete, and I asked him the question on that tape. I said, Doctor — I mean I said, Agent Boyle, now, suppose you find out some information from one guy and find out some from another and you need to go re-interview somebody. He said, it’s possible.
“And Dr. Brown and Dr. Kimbrough said we need more information from Tommy Whisenhant. I’ll tell you, if he’s alive ten years from now, other Paytons may be saved, because you can see how that the Mobile Police Department found a dead body that had been cut on and the F.B.I., the first thing that center would tell them, stake out the scene. Mr. Whisenhant would be long [sic] — we wouldn’t have this trial and Mrs. Payton would be alive.”
It is clear that the State was responding to the defendant’s participation in the F.B.I. survey rather than attempting to minimize the jury’s sense of responsibility.
“A criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of the trial.”
United States v. Young, 470 U.S. 1, 10, 105 S.Ct. 1038, 1043, 84 L.Ed.2d 1 (1985).
As the Court of Criminal Appeals pointed out, “the prosecutor was attempting to point out that this appellant did not fit the proper criteria for the F.B.I. study and, thus, his cooperation was self-serving in that it may be considered a nonstatutory mitigating circumstance on appeal.” Whisenhant v. State, 555 So.2d 219 (Ala.Crim.App.1988). We agree with the Court of Criminal Appeals’ finding that the prosecutor’s arguments were not improper.
VII. REQUESTED JURY INSTRUCTION # 10
At the sentencing trial, the defendant requested that the court give his proposed jury instruction # 10, listing the nonstatutory mitigating circumstances that he felt were supported by the evidence at trial:
“ — First, that [petitioner] had psychological and emotional problems when he committed the capital offense;
“ — Second, that [petitioner’s] early family history contributed to his conduct;
“ — Third, that [petitioner] has made efforts to assist law enforcement;
“ — Fourth, that [petitioner] has made efforts to help the victim’s family; and
“ — Fifth, that [petitioner] has made a good adjustment to life in prison.”
The trial judge gave the following instructions to the jury regarding nonstatutory mitigating circumstances:
“In addition to the mitigating circumstances I have just read to you, you may also consider as a mitigating circumstance the circumstances of the capital offense which tend to indicate that the Defendant should not be sentenced to death. This includes, but is not intended [sic] to, anything that happened to the Defendant before he committed the capital offense that indicates or tends to indicate that he should not be sentenced to death. Mitigating circumstances also include, but are not limited to, any conduct or behavior of the Defendant since the time of the capital offense which indicates or tends to indicate that he should not be sentenced to death. Mitigating circumstances also include, but are not limited to, any aspect of the Defendant’s mental or emotional condition at the time of the crime which indicates or tends to indicate that the Defendant should be sentenced to life imprisonment without parole instead of death. A mitigating circumstance does not have to be included in the list which I have read to you in order for it to be considered by you.
“The law of this State recognizes that it is possible, in at least some situations, for a large number of aggravating circumstances to be outweighed by one or a few mitigating circumstances. In other words, the law contemplates that different circumstances may be given different weights or values in determining what sentence is to be given to a particular circumstance in light of all the other circumstances in this case. You must do that in the process of weighing the aggravating circumstance or circumstances against the mitigating circumstance or circumstances in order to determine the proper sentence.”
The Eleventh United States Circuit Court of Appeals requires that the trial judge do the following when instructing the jury on mitigating circumstances in a death penalty ease:
“(1) instruct the jury that it must consider mitigating evidence, (2) define mitigating factors and explain their function in sentencing deliberations, and (3) inform the jurors that a finding of aggravating circumstances does not require them to return a death sentence.”
Tucker v. Zant, 724 F.2d 882, 891 (11th Cir.1984).
The trial court’s instructions satisfied the requirements of Tucker. Therefore, we find that the trial court did not commit error by denying the defendant’s requested jury instruction # 10.
VIII. TESTIMONY BY THE VICTIM’S MOTHER
At the sentencing trial, the judge allowed the victim’s mother, Vivian Gazzier, to testify regarding the fear her daughter had felt because of two other convenience store murders in the Mobile area during the two years preceding her daughter’s murder. Mrs’. Grazzier testified that her daughter had turned in her resignation on the day she was murdered because of the fear she felt. The defendant argues that the trial court committed error in admitting Gazzier’s testimony because, he argues, the testimony was not relevant to any aggravating circumstances proffered by the State and was inadmissible hearsay. The trial court admitted the mother’s testimony, based on the following reasoning:
“The Section 13-11-6(8) aggravating circumstance does exist. The Defendant did not suddenly kill Cheryl Lynn Payton without her having an opportunity to suffer the anticipation of her death at the hands of a murderer. Instead, the Defendant abducted her; he drove her to an isolated spot; because it was raining, he raped her in the cab of his pickup truck so he would not get wet; he marched the terrified victim out of the truck; and he shot her to death. Cheryl Lynn Payton knew that two other female convenience store clerks in Mobile had been murdered in the preceding year. She knew that the more recent victim had been abducted and that after she had been killed, her body had been mutilated. Cheryl Lynn Payton was afraid that she, too, would be abducted and murdered. As she was being abducted, as she was being taken to an isolated spot, as she was being raped, and as she was taken from the Defendant’s truck, Cheryl Lynn Payton was terrified. She had reason to know that she was going to die long before the Defendant actually killed her. Considering all the circumstances, this capital offense was especially heinous, atrocious and cruel. The heinousness, atrociousness, and cruelty in this capital offense exceeded by far that which is present in every capital offense.”
In order for a trial court to find that a murder was heinous, atrocious, and cruel, the crime must be of such a nature that it is “conscienceless or pitiless” and “unnecessarily torturous to the victim.” Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981).
The defendant argues that this case is analogous to that of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and that the judgment must, therefore, be reversed. We disagree. In Booth, an elderly Baltimore, Maryland, couple were brutally stabbed to death by the defendant Booth and an accomplice. Before the sentencing phase of the trial, the State Division of Parole and Probation interviewed the victims’ son, daughter, son-in-law, and granddaughter. These interviews were then compiled into a “Victim Impact Statement” (V.I.S.) The V.I.S. included very emotional statements by those interviewed and spoke of the many fine qualities of the deceased. The Division of Parole and Probation official who interviewed the survivors concluded the report by writing:
“It became increasingly apparent to the writer as she talked to the family members that the murder of Mr. and Mrs. Bronstein is still such a shocking, painful, and devastating memory to them that it permeates every aspect of their daily lives. It is doubtful that they will ever be able to fully recover from this tragedy and not be haunted by the memory of the brutal manner in which their loved ones were murdered and taken from them.”
Id., 482 U.S. at 498-99, 107 S.Ct. at 2531-32.
The prosecutor in Booth, over defense counsel objections, read the V.I.S. to the jury. The jury sentenced Booth to die for one of the murders and to life imprisonment for the other murder. The United States Supreme Court overturned the capital conviction, holding that the introduction of the V.I.S. violated the Eighth Amendment. Id., 482 U.S. at 504, 107 S.Ct. at 2536.
The facts of this case differ markedly from those in Booth. Here, the testimony that the trial court relied on dealt not with the suffering Mrs. Gazzier had experienced since the murder, but rather the fear that Cheryl Lynn Payton experienced leading up to her murder. Unlike the jury in Booth, the trial court in this case relied on the emotions that Cheryl Lynn Payton felt, not the emotions felt by her survivors. In Booth, the Supreme Court overturned the conviction because the defendant had no control over the emotions that the surviving relatives felt. Here, the defendant surely was aware that, because of the recent crimes he had committed, a female convenience store clerk like Cheryl Lynn Payton would be afraid of being abducted,raped, and murdered.
We adopt, by reference, the language of the trial judge regarding this aggravating circumstance, and we conclude that his finding was proper.
In addition, the statements made by the victim’s mother, although hearsay, were admissible because they were declarations of the emotion of fear. C. Gamble, McElroy’s Alabama Evidence, 262.01(11) (3d ed.1977). The trial court, therefore, was correct in admitting the testimony of Mrs. Gazzier.
VIII. CONCLUSION
This Court, having searched the record, finds no plain error or defect that adversely affected any of Whisenhant’s substantial rights.
The record reveals no evidence that the sentence of death resulted from or “was imposed under the influence of passion, prejudice, or any other arbitrary factor.” Code 1975, § 13A-5-53(b)(1).
In addition, the sentence in this case is not disproportionate to the sentence imposed in similar capital punishment cases. Bradley v. State, 494 So.2d 750 (Ala.Cr.App.1985), affirmed, 494 So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987) (rape/murder); Dunkins v. State, 437 So.2d 1349 (Ala.Cr.App.), affirmed, 437 So.2d 1356 (Ala.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984) (rape/intentional killing).
The trial court found that the following four aggravating circumstances existed (pursuant to Code 1975, §§ 13-11-6):
“The Section 13-11-6(1) aggravating circumstance does exist. When the defendant committed the capital offense of raping and murdering Cheryl Lynn Payton on October 16, 1976, he was still under a twenty-year federal sentence of imprisonment he had received on March 14, 1966, for assault with intent to murder. He had been paroled on November 28, 1973, but for purposes of the Section 13-11-6(1) aggravating circumstance he was still, quote, under sentence of imprisonment, close quotes.
“The section 13-11-6(2) aggravating circumstance also exists. The Defendant was previously convicted of three crimes which involve violence to the person, and any one of them is sufficient to establish this aggravating circumstance. In 1966, he was convicted for assault with intent to murder, as has already been discussed. In 1981, he pled guilty to and was convicted of two first degree murders, the 1975 murder of Patricia Hitt and the 1976 murder of Venora Hyatt.
“The Section 13-11-6(4) aggravating circumstance does exist. The capital offense involved rape. The Defendant murdered'Cheryl Lynn Payton after raping her.
“The Section 13-11-6(8) aggravating circumstance does exist. [The trial court’s discussion of the § 13-11-6(8) aggravating circumstance is quoted above.]”
The court found that no statutory mitigating circumstances existed. However, the court did find that the following non-statutory mitigating circumstances existed:
“The defendant was under some mental or emotional disturbance at the time of the crime, but it was not extreme. The fact that the Defendant was under some mental or emotional disturbance at the time of the crime will be and is considered as a nonstatutory mitigating circumstance.
“He is and was schizoid, which means he is detached.-
“The defendant is and was paranoid, which means he has persecutorial delusions.
“He also has necro-sadistic tendencies, which means he likes to cut up on or abuse dead bodies. He displayed those necro-sadistic tendencies when he returned to Cheryl Lynn Payton’s body the day after he murdered her and cut on it with a knife. The rape and murder of Cheryl Lynn Payton was not caused by the defendant’s schizoid personality, or by his paranoid tendencies, or by his necro-sadistic desire. Nonetheless, the Court does and will consider those personality disorders as nonstatutory mitigating circumstances and give them such weight as they deserve.”
Having independently weighed the evidence in the record, we feel that those nonstatutory mitigating circumstances found by the trial court deserve consideration. However, after consideration of these circumstances, we are of the opinion that the aggravating circumstances of the crime far outweigh the mitigating circumstances.
After review of the entire record, this Court is convinced that Thomas Warren Whisenhant received a fair trial; his sentence of death by electrocution for the murder of Cheryl Lynn Payton is due to be affirmed.
AFFIRMED.
HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.
Thomas Warren WHISENHANT, Petitioner-Appellant, v. Richard F. ALLEN, Commissioner, Alabama Department of Corrections, Respondent-Appellee.
No. 04-15810.
United States Court of Appeals, Eleventh Circuit.
Feb. 3, 2009.
Rebekah Young, Rhonda Brownstein, J. Richard Cohen, Southern Poverty Law Ctr., Montgomery, AL, for Whisenhant.
J. Clayton Crenshaw, Montgomery, AL, for Allen.
Before EDMONDSON, Chief Judge, and BIRCH and BLACK, Circuit Judges.
[OPINION BY PER CURIAM: type=majority]
PER CURIAM:
This is a death penalty case in which petitioner-appellant, Thomas Warren Whisenhant, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for federal habeas relief. Whisenhant raises four claims in this appeal: (1) his counsel was ineffective at his 1981 guilt phase trial for failing to present his only defense of insanity; (2) the state failed to disclose exculpatory evidence during the 1981 trial and a 1987 penalty phase trial; (3) the prosecutor’s closing argument at the 1981 trial was fundamentally unfair; and (4) the trial judge’s ex parte dealings with prosecutors prior to the 1987 penalty phase trial violated Whisenhant’s due process right to an impartial judge. We conclude that the district court properly denied habeas relief and AFFIRM.
I. BACKGROUND
On a rainy night in October 1976, Whisenhant abducted 24-year-old Cheryl Lynn Payton at gunpoint from a convenience store in Theodore, Alabama, where she was working alone. Whisenhant drove her to a remote area, raped her in his truck, and then took her into the woods where he shot her in the head, killing her. He later returned twice to the woods and mutilated Payton’s body with his knife. After police officers apprehended him, Whisenhant confessed to the rape, killing, and mutilation of Payton. He also confessed to killing within the past year two other female convenience store clerks and mutilating one of them.
At the 1977 trial for Cheryl Payton’s murder, Whisenhant presented numerous witnesses to establish an insanity defense. In particular, a noted psychiatrist, Dr. Claude L. Brown, testified that Whisenhant had a mental disease and that he had lost the power to distinguish right from wrong when he had killed Payton. Whisenhant, 370 So.2d at 1089. The jury rejected the insanity defense, and Whisenhant was convicted and sentenced to death. The Alabama Court of Criminal Appeals reversed his conviction, however, based on the prosecutor’s improper closing argument and a fatal variance between the indictment and judgment. Whisenhant v. State, 370 So.2d 1080, 1103 (Ala.Cr.App.1979), cert. denied, 370 So.2d 1106 (Ala.1979).
A second jury trial was held in 1981. Prior to trial, Whisenhant’s attorneys filed a motion for $3500 to hire two psychiatrists who had evaluated Whisenhant before the 1977 trial, and a more general motion for funds for expert witnesses. The trial court denied the first motion and granted the statutory cap of $500 for the second motion. Whisenhant’s counsel firmly believed the trial court committed reversible error by denying Whisenhant’s motion for funds for the psychiatrists, and decided not to present any evidence of insanity. Whisenhant was again convicted and sentenced to death.
On appeal, Whisenhant raised the perceived error of the trial judge’s denial of his motion for funds, but the Alabama Court of Criminal Appeals found no constitutional violation. Whisenhant v. State, 482 So.2d 1225, 1228-30 (Ala.Cr.App.1982). Although the Alabama court affirmed his conviction, it reversed his death sentence based on the prosecutor’s improper opening statement at the sentencing phase, which mentioned other crimes allegedly committed by Whisenhant that were not introduced at trial. Id. at 1239-40. After further appellate review, the Alabama Supreme Court declared the error was not harmless and remanded the case for a new sentencing trial. Ex Parte Whisenhant, 482 So.2d 1247, 1249 (Ala.1984) (per curiam).
In 1987, a third penalty phase proceeding occurred. At this proceeding, Whisenhant again presented evidence of mental illness but a jury unanimously voted to sentence Whisenhant to death for the third time. The Court of Criminal Appeals affirmed the death sentence, as did the Alabama Supreme Court. Whisenhant v. State, 555 So.2d 219 (Ala.Cr.App.1988); Ex parte Whisenhant v. State, 555 So.2d 235 (Ala.1989). The United States Supreme Court denied Whisenhant’s petition for writ of certiorari. Whisenhant v. Alabama, 496 U.S. 943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990).
Whisenhant then began state habeas corpus proceedings by filing an Alabama Rule of Criminal Procedure Rule 32 petition. During discovery, Whisenhant received two FBI reports made after the murder of Venora Hyatt, which provided speculative profiles about the unidentified killer. Whisenhant also discovered a statement made to police officers by his co-worker S.H. who described Whisenhant as “weird.” Rl-14, Exh. Vol. 39 at 362-67. Based on these documents, Whisenhant amended his complaint in 1995 to include a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).
Shortly before the Rule 32 hearing in October 1996, Whisenhant discovered a draft order granting Whisenhant’s motion for funds to hire a psychiatrist. Prior to the 1987 trial, prosecutor Chris Galanos had given this proposed order to the trial judge, Circuit Judge Ferrill D. McRae, but not to defense counsel. Judge McRae entered an order the next day similar to the draft order but increased the amount of funds to $2,200. Based on this discovery, Whisenhant added a claim of judicial bias to his state habeas petition and moved to recuse Judge McRae from the Rule 32 proceedings. Judge McRae granted the motion for recusal “out of an abundance of caution and to avoid all appearance of impropriety.” Rl-14, Exh. Vol. 36 at 319. After the Rule 32 hearing, Judge Braxton Kittrell denied the habeas petition in its entirety. The Alabama Court of Criminal Appeals affirmed the denial in an unpublished memorandum. The Alabama Supreme Court denied Whisenhant’s petition for a writ of certiorari.
Having exhausted state court post-conviction remedies, Whisenhant filed a federal habeas petition pursuant to 28 U.S.C. § 2254. In a detailed 81-page order, the district court analyzed each of Whisenhant’s fourteen claims before denying habeas relief. Whisenhant filed a motion for a certificate of appealability (COA), which the district court denied in part and granted on four grounds: (1) whether the trial court’s denial of his motion for funds to employ psychiatrists prior to the 1981 guilt phase trial violated Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (2) whether the prosecution’s failure to disclose two FBI profiles and S.H.’s statement until after the 1987 penalty phase trial violated Brady; (3) whether the inclusion of venire members at the 1981 trial who knew that Whisenhant had been convicted at his 1977 trial violated Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); and (4) whether the trial judge’s ex parte dealings with prosecutors prior to the 1987 penalty phase trial concerning the proposed order for funds violated In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955).
Whisenhant then filed in this court an application for a COA on two of his denied claims: (1) ineffective assistance of counsel at the 1981 guilt phase trial for failure to present an insanity defense, and (2) prosecutorial misconduct at the 1981 trial based on the prosecutor’s closing argument that no co-worker had testified Whisenhant was insane. We granted a COA on these two issues.
In his § 2254 appeal brief, Whisenhant states he has dropped the issues of whether the trial court’s denial of his motion for funds violated Ake, and whether the jury composition violated Irvin. Because he does not raise these claims in his brief to us, these claims are abandoned. See Hen drix v. Secretary, Florida Dep’t. of Corr., 527 F.3d 1149, 1154 (11th Cir.2008) (per curiam). We turn now to his remaining four claims for habeas relief.
II. DISCUSSION
A. Claim of Ineffective Assistance of Counsel
Whisenhant contends that he received ineffective assistance of counsel at his 1981 guilt phase trial because his attorneys failed to present any evidence that he was insane. He concedes that this decision was strategic — counsel believed the trial judge’s denial of their motion for funds for psychiatrists was a locked-in error that would be disturbed if they presented evidence of insanity. Whisenhant argues that this strategy was unreasonable, however, in light of the voluminous evidence from the 1977 trial and his prior medical records. Morever, Whisenhant asserts that he was prejudiced by his attorneys’ deficient performance because there was a reasonable probability of a different result had they presented the 1977 trial evidence, coupled with the two FBI reports and S.H.’s statement that the state should have disclosed.
In order to obtain federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Whisenhant must show that the state court decision adjudicating his claims (1) was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedents, or (2) unreasonably determined the facts in light of the evidence presented in the state courts. 28 U.S.C. § 2254(d). The first prong means that a state court identified the correct governing legal principle but unreasonably applied it to the facts of a petitioner’s case. Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). To satisfy this standard, the state court’s application must have been ‘“objectively unreasonable,’ ” not just incorrect or erroneous. Id. (quotation omitted).
The state habeas court and the Alabama Court of Criminal Appeals correctly analyzed Whisenhant’s claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires the petitioner to show both that his counsel’s performance was deficient, and that the deficiency prejudiced his defense. 466 U.S. at 687, 104 S.Ct. at 2064. Both state courts found that trial counsels’ strategy was reasonable, and that the result of the proceeding would not have been different if evidence of insanity had been presented.
An attorney’s performance is deficient if the acts or omissions of counsel, in light of all the circumstances and facts of the particular case fall “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. The Supreme Court cautioned appellate courts not to second-guess counsel’s assistance, noting how easy it is to view counsel’s performance as unreasonable after an unsuccessful defense. Id. at 689, 104 S.Ct. at 2065. “Even the best criminal defense attorneys would not defend a particular client in the same way.” Id. at 689, 104 S.Ct. at 2065. To counteract the distorting effects of hindsight, the defendant bears the burden of overcoming a strong presumption that the challenged action is sound trial strategy. Id. at 689, 104 S.Ct. at 2065.
Whisenhant concedes that his trial attorneys made a strategic decision not to present any evidence of insanity but argues that this decision was unreasonable. Whisenhant argues that because trial counsel could have presented evidence of insanity, he should have. He asserts that trial counsel could have subpoenaed Dr. Brown, could have called a former police officer to testify about Whisenhant’s behavior as a youth, could have read into evidence testimony and medical reports introduced at the 1977 trial, could have used the $500 granted by the trial court to hire experts instead of obtaining a serologist’s report, and could have presented Whisenhant’s federal prison medical records. Because this evidence was available to trial counsel, Whisenhant argues that it was unreasonable not to use it.
Whisenhant’s argument ignores the fact that his attorneys’ decision was made after substantial investigation into plausible lines of defense. Morris Dees, an experienced lawyer who founded the Southern Poverty Law Center, was lead counsel in all three of Whisenhant’s trials. After investigating the case prior to the 1977 trial, he concluded insanity was Whisenhant’s best defense. Dees felt that psychiatric testimony would be the linchpin because Whisenhant’s mental illness would not be readily apparent to his friends and neighbors. Dees had serious doubts that jurors at the 1981 trial would accept an insanity defense, however, because “this was a case in their backyard where women were being killed and left dead all around the county.” Rl-14, Exh. Vol. 38 at 213-14. Unlike the first trial which was held in another county, the 1981 trial was held in the same county the murder had occurred. Dees’s assisting trial counsel, John Carroll, also doubted that a jury would accept an insanity defense based on the jurors’ strong reactions at the 1977 trial to the horrific details of the murder. As a result, Dees felt that a jury surely would not find Whisenhant insane without live psychiatric testimony.
Dees believed it was “fundamentally unfair” and a violation of due process for the state not to provide an indigent with adequate funds for essential experts. Rl-14, Exh. Vol. 38 at 216-17, 219. Dees’s foresight proved correct when the Supreme Court decided in Ake that, pursuant to the Fourteenth Amendment’s due process guarantee of fundamental fairness, the state must assure access to a psychiatrist if an indigent defendant’s sanity is likely to be a significant factor in his defense. Ake, 470 U.S. at 74, 83, 105 S.Ct. at 1091-92, 1096. Although Ake was decided four years after the 1981 trial, Dees was aware of literature and laws at that time supporting his views, and he investigated the issue of the state’s obligation to provide funds for an indigent. Based on his research, Dees believed the trial court’s denial of the motion for funds for a psychiatrist was a “locked-down, lead-pipe, four-square” error in the record. Rl-14, Exh. Vol. 39 at 327. Once an error is locked down, Dees explained his trial strategy is to “leave it there because, you know, the idea is to give your client a fair trial; and if the State has messed up by committing an error, then you would be guilty of malpractice if you didn’t win on that error.” Rl-14, Exh. Vol. 38 at 272.
After the trial court denied his motion for funds for a psychiatrist, Dees decided not to present any evidence of insanity. This is why he did not subpoena Dr. Brown to testify or pay Dr. Brown’s fee out of his own pocket. Dees also considered but rejected the idea of reading into the record the testimony and reports of witnesses from the 1977 trial. Whisenhant’s sister could no longer testify at the 1981 trial because of emotional problems, and Dees believed that her dramatic, emotional testimony at the 1977 trial would not be evident from merely reading her prior statements. Moreover, Dees felt that reading testimony into the record from the experts or their reports would have been “virtually useless” when the state was presenting live witnesses. Id. at 228-29. He also decided not to call Captain Bryant as a witness because his lay opinion about things that happened when Whisenhant was a child would serve little or no purpose without the psychiatric testimony. Given that the $500 granted by the trial court was insufficient to cover the fees for Dr. Brown testifying at trial, Whisenhant decided instead to use the money to test the victim’s undergarments for sperm. Dees hoped to find evidence that Whisenhant did not rape the victim, which would provide a critical defense to the charge of capital murder.
In light of all these circumstances, trial counsel’s decision not to present any evidence of insanity was a sound trial strategy that “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Trial counsel made an informed, reasonable judgment after thoroughly investigating the law and facts relevant to Whisenhant’s case. Such strategic choices are “virtually unchallengeable.” Id. at 690, 104 S.Ct. at 2066. The state courts’ decisions that counsel’s performance was not deficient comports with Supreme Court precedent.
Because Whisenhant has failed to satisfy the first requirement of Strickland, he cannot succeed on a claim of ineffective assistance of counsel and we, therefore, need not address whether counsel’s performance prejudiced the defense. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 (“Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”). Habeas relief is denied on this claim.
B. Brady Claim
A COA was also issued on whether the State’s failure to disclose two FBI profile reports and a statement by Sandra L. H. violated Whisenhant’s rights under Brady. Both the state habeas court and the Alabama Court of Criminal Appeals determined that the undisclosed documents were not material, which under Brady means that Whisenhant has failed to show a reasonable probability of a different result had the documents been disclosed. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). The Supreme Court has clarified that a defendant need not show he would have received a different verdict with the evidence, but rather that the suppressed evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). In determining whether the defendant received a fair trial, a court should consider the suppressed evidence “collectively, not item by item” since “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.” Id. at 434, 436-37, 115 S.Ct. at 1567.
The FBI reports were generated to assist authorities in finding the unknown killer of Yenora Hyatt, who was murdered about six months before Cheryl Payton. The first report, based on crime scene photographs, speculates that “[i]f perpetrator is truly schizophrenic, initial attack would probably have taken place in or around the store and would have been both sudden and fatal.” Rl-14, Exh. Vol. 39 at 356. The second report references the autopsy results and opines that the probable subject suffers from simple schizophrenia and has usually been in contact with the victim on a number of previous occasions. The third undisclosed document is a statement by S.H., a co-worker who dated Whisenhant for a few months in 1974. H. stated that Whisenhant would wiggle his feet when watching television and giggle even though nothing was funny; his eyes would sometimes get “glassy looking”; he would watch her drive and “grin up a storm”; he was “weird”; and all the people who used to work with him at the ship yard “knew how weird he was.” Id. at 363-67.
With respect to the materiality of these three documents at the 1981 guilt phase trial, trial counsel testified that he would not have used them given his strategic decision not to offer any evidence of insanity. Because the disclosure of these documents could not have affected the outcome of Whisenhant’s 1981 trial, the Alabama Court of Criminal Appeals correctly determined that these documents were not material. Bagley, 473 U.S. at 682, 105 S.Ct. 3383.
Nor were the undisclosed documents material to the 1987 penalty phase trial. Whisenhant’s counsel presented numerous witnesses at the 1987 trial who testified about Whisenhant’s personality and mental state. Dr. Brown explained in detail how Whisenhant’s troubled childhood and domineering mother resulted in a history of violence against women. Dr. Brown diagnosed Whisenhant as a schizoid personality with a mental disease that people around him in daily life would be unlikely to notice given its episodic manifestations. Dr. Brown’s conclusions were corroborated by another expert, Dr. Tanay, whose report was read partly into evidence. In summarizing the insanity evidence presented, the district court found that “the defense constructed a detailed mosaic of evidence advancing its position that Whisenhant was under the duress of an extreme mental disturbance, that he was unable to appreciate the criminality of his conduct, and that he otherwise suffered from psychological and emotional problems when he raped and murdered Payton.” Rl-22 at 34.
In light of all the evidence at the 1987 penalty trial, the marginal value added by the two FBI profile reports and H.’s statement would not have “put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. at 1566. The FBI reports were speculative profiles involving a different victim that included opinions which both matched and did not match certain aspects of Whisenhant’s character and his murder of Cheryl Payton. At best, they would have been cumulative of some of Dr. Brown’s expert testimony. Likewise, H.’s lay opinion that Whisenhant was weird would not have significantly bolstered Dr. Brown’s testimony. This is especially true given that H.’s descriptions contradict Dr. Brown’s opinion that Whisenhant’s coworkers would not readily notice any strange behavior. It is thus highly unlikely that disclosure of these documents would have changed the outcome of the 1987 trial. The Alabama Court of Criminal Appeals’ decision reasonably applied Brady and its progeny in determining that the undisclosed information was immaterial and that no Brady violation occurred.
C. Prosecutorial Misconduct Claim
Whisenhant next challenges the prosecutor’s closing argument at his 1981 guilt phase trial that no co-worker testified Whisenhant was insane. In his closing argument, the prosecutor remarked as follows:
If these three fíne criminal defense lawyers had found any doctor, any friend, any co-worker, anyone that knew the Defendant and they said he was insane, don’t you think you would have heard from them? You haven’t heard a word, and these three lawyers are very very good. Nobody has come in here and said that Tommy ran around eating dirt, did they, running naked and jumping on women at bus stops and that he was insane. No. The reason is simply this, they couldn’t find anybody to say it.
Mr. CARROLL: Objection, Judge that’s not true.
THE COURT: He has a right to argue his inferences.
Rl-14, Exh. Vol. 16 at R618-19. At the same time the prosecutor made this statement, Whisenhant alleges the prosecutor knew the state had deceptively suppressed co-worker S.H.’s statement that Whisenhant was weird. Whisenhant asserts that the prosecutor biased the jurors against a finding that Whisenhant was mentally ill and deprived him of the opportunity to object to the improper statement, thereby violating his due process rights under Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).
In Darden, the Supreme Court recognized that a defendant’s due process right to a fair trial is not infringed by a prosecutor’s remarks that are “undesirable or even universally condemned.” 477 U.S. at 181, 106 S.Ct. at 2471 (citation and punctuation omitted). Instead, the comment must have infected the trial with such unfairness that the conviction constitutes a denial of due process. Id. at 181, 106 S.Ct. at 2471 (citation and punctuation omitted). Any challenged remarks must be evaluated in context based upon the defense argument that preceded it. Id. at 179, 106 S.Ct. at 2470. Where the “objectionable content was invited by or was responsive to the opening summation of the defense,” a reviewing court must determine the comment’s effect on the trial as a whole. Id. at 182, 106 S.Ct. at 2472.
As in Darden, the prosecutor’s challenged comment here was responsive to the defense’s closing argument and did not misstate the evidence. Whisenhant’s attorney argued that Whisenhant was insane, as evidenced by the brutal facts of the murder, and Whisenhant’s confession that he did not know why he killed the victim and could not control his actions. The prosecutor then responded by pointing out that no co-workers had testified Whisenhant was insane. This comment did not misrepresent H.’s statement, which never characterized Whisenhant as insane, only “weird.” Rl-14, Exh. Vol. 39 at 365. H. denied that Whisenhant ever threatened her, used any violence against her, or even made any sexual advances toward her. Moreover, H. lost contact with Whisenhant in 1975 and his allegedly strange behavior occurred while they were dating in 1974, approximately two years before Cheryl Payton’s murder in 1976. Based on the foregoing, the Alabama Court of Criminal Appeals correctly found that the prosecutor’s argument was correct because the “behavior described by S.H. clearly fell short of insanity.” Rl-14, Exh. Vol. 42, R44 at 4.
Whisenhant argues that the prosecution’s suppression of H.’s statement precluded him from objecting to the improper statement. As noted, however, Whisenhant’s attorney did object to the prosecutor’s comments that the defense could not find anybody to say Whisenhant was insane, but the trial judge overruled the objection as a permissible argument. In light of the overwhelming evidence of Whisenhant’s guilt and defense counsel’s tactical decision not to present any evidence of insanity, the likelihood that the jury’s decision was influenced by the prosecutor’s isolated comment is minimal. See Darden, 477 U.S. at 182, 106 S.Ct. at 2472 (heavy weight of evidence against petitioner reduced the likelihood that an improper closing argument influenced the jury).
Viewing the trial as a whole, we conclude the prosecutor’s invited response about the lack of insanity testimony by a co-worker did not render Whisenhant’s trial fundamentally unfair. See United States v. Frazier, 944 F.2d 820, 825-26 (11th Cir.1991) (no due process violation where defense invited prosecutor’s rebutting argument and there was overwhelming evidence of defendant’s guilt). Whisenhant is, therefore, not entitled to habeas relief on his claim of prosecutorial misconduct.
D. Claim of Judicial Bias
In his final claim for habeas relief, Whisenhant asserts that the trial judge’s bias and his appearance of partiality at the time of the 1987 penalty phase trial violated In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Specifically, Whisenhant alleges that Judge McRae had an ex parte communication with the prosecution before the 1987 trial in order to cover up a potential error that occurred in the 1981 trial. This purported scheme between Judge McRae and the prosecution deprived him of his constitutional right to an impartial judge.
Prior to the 1987 penalty phase trial, Whisenhant filed a motion for funds for a psychiatrist. Chris Galanos, the Mobile County District Attorney in 1987, gave Judge McRae a draft order granting that motion. Galanos attached a handwritten cover note stating that the order “enumerates facts intended to preclude Ake error during the guilt stage, but I am not sufficiently familiar with the facts to determine the accuracy of the order. Let me know what you want to do.” Rl-14, Exh. Vol. 36 at 314. After making some minor revisions and increasing the amount of the funds from $2000 to $2200, Judge McRae entered an order the next day granting Whisenhant’s motion.
The state habeas court found that this claim was procedurally defaulted and, alternatively, lacked merit because even assuming the trial judge had ex parte communications with the prosecutor, the result was that Whisenhant received the money he had requested. The Alabama Court of Criminal Appeals only considered the claim on its merits. It found there was no evidence that the trial judge knew the motion was not served on the defense. There was also no potential error to be covered up because Judge McRae’s denial of the 1981 motion for funds had already been affirmed on appeal before the draft order was submitted. See Whisenhant v. State, 482 So.2d 1225, 1228-30 (Ala.Cr.App.1982). Finally, the trial judge’s order granted the funds Whisenhant had sought. Based on the foregoing, the Alabama Court of Criminal Appeals determined that Whisenhant failed to offer any evidence that the trial judge was personally biased or partial.
Whisenhant challenges the finding by the Court of Criminal Appeals that Judge McRae did not know the motion was not served on the defense. He claims this finding is based on an unreasonable determination of the facts in light of the evidence presented at the Rule 32 proceeding. Factual findings by a state court are presumed correct unless the appellant rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Henyard v. McDonough, 459 F.3d 1217, 1240 (11th Cir.2006) (per curiam), cert. denied, 549 U.S. 1284, 127 S.Ct. 1818, 167 L.Ed.2d 328 (2007). Whisenhant had a full and fair opportunity to present evidence on this issue at the state habeas hearing. At that hearing, Whisenhant called as a witness Chris Galanos, who admitted he did not serve Whisenhant’s trial attorneys with a copy of the draft order. Whisenhant did not ask Galanos whether he told Judge McRae that fact, however. Nor did Whisenhant call Judge McRae as a witness. Although the habeas judge stated that Judge McRae should only be called as a witness if “absolutely essential,” the habeas judge did not forbid Whisenhant from doing so. Rl-14, Exh. Vol. 37, State Habeas Corpus Hearing on 24 October 1996 at 1-2. Without Judge McRae’s testimony, we can only speculate as to what he knew and did not know. The burden was on Whisenhant to prove his claimed violation, and he has failed to do so. See Hendrix, 527 F.3d at 1153 (state court’s finding was a reasonable determination of the facts where petitioner failed to present evidence at the state habeas hearing to support his claim). Thus, Whisenhant has not presented clear and convincing evidence to rebut the presumption of correctness afforded to the state court’s factual finding.
Even if Judge McRae had known that the defense did not receive a copy of the draft order, Whisenhant has failed to establish a constitutional violation. To the extent that Whisenhant argues that Judge McRae’s “appearance of partiality” violates his due process rights, we have held that “there is no Supreme Court decision clearly establishing that an appearance of bias or partiality, where there is no actual bias, violates the Due Process Clause or any other constitutional provision.” Id. at 1153; see also Davis v. Jones, 506 F.3d 1325, 1336-37 (11th Cir.2007) (no due process violation where petitioner claims only an appearance of partiality and not actual bias). Thus, in so far as Whisenhant claims the trial court’s ex parte actions created an appearance of partiality, we conclude that the state courts’ rejection of Whisenhant’s claim of judicial bias was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
With respect to Whisenhant’s claim of actual bias, he fares no better. It is long established that “[a] fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. at 136, 75 S.Ct. at 625. The Supreme Court has identified various situations in which “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). Such cases include those in which the judge has a pecuniary interest in the outcome or has been personally abused or criticized by the party before him. Id.
None of the cases cited by Whisenhant are analogous to his own. In re Murchison involved a judge acting under state law as a one-man grand jury who later charged the witnesses with contempt based on their grand jury testimony, then tried and convicted them. 349 U.S. at 134-35, 75 S.Ct. at 624-25. The judge based his judgment of contempt on his own personal knowledge and impressions of what had occurred in the grand jury room, including his opinions that the witness was insolent and defiant, even though the judge’s opinions could not be cross-examined. Id. at 138, 75 S.Ct. at 626. The Supreme Court held that it was a violation of due process for “a judge to act as a grand jury and then try the very persons accused as a result of his investigations.” Id. at 137, 75 S.Ct. at 625.
Three other cases cited by Whisenhant also involved criminal contempt proceedings in which the Court held that a judge other than the one reviled by a contemnor should decide the contempt issue. In Offutt v. United States, 348 U.S. 11, 12, 75 S.Ct. 11, 12, 99 L.Ed. 11 (1954), a trial judge repeatedly clashed with defense counsel throughout a 14-day trial, ending in a finding of criminal contempt against trial counsel, which the Supreme Court reversed. In concluding that the trial judge was biased and not impartial, the Supreme Court emphasized that this was “not a rare flareup,” but rather a “continuous wrangle on an unedifying level between the two.” Id. at 17, 75 S.Ct. at 15. Likewise, in Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 2705, 41 L.Ed.2d 897 (1974), a running controversy between the trial judge and defense counsel escalated during a 10-day trial to the point that the trial judge’s “mounting display of an unfavorable personal attitude toward petitioner, his ability, and his motives” had left personal stings on both sides. In contrast, the trial judge in Mayberry v. Pennsylvania, 400 U.S. 455, 465-66, 91 S.Ct. 499, 505, 27 L.Ed.2d 532 (1971), was not “an activist seeking combat” like the judge in Offutt or Taylor. Nevertheless, the defendant’s cruel slanders so vilified the trial judge that the judge “necessarily becomes embroiled in a running, bitter controversy,” requiring a new judge to preside over a contempt proceeding. Mayberry, 400 U.S. at 466, 91 S.Ct. at 505.
It is clear that the judicial bias cases cited by Whisenhant involve totally different facts from his own case. There is no evidence that Judge McRae was involved in a “running controversy” with Whisenhant or Whisenhant’s attorneys. Neither side made personal attacks against the other, and Judge McRae never displayed an inappropriate or hostile attitude toward the defense. Moreover, the order granting Whisenhant’s motion for funds benefit-ted the defense. The cover letter by Chris Galanos does not establish that Judge McRae was in cahoots with the prosecution, nor that he signed the order granting the motion for funds in order to protect against a potential Ake error in the 1981 trial. As the district court adroitly concluded,
Under the circumstances, Whisenhant’s accusations of a judicial/prosecutorial conspiracy in a smoke-filled backroom are not credible where the “conspiracy” ’s object was an unremarkable order that gave the defense exactly what they wanted and made accurate observations about evidence available to the defense in earlier proceedings. Had a “conspiracy” truly been hatched, the [cjourt suspects it would not have been used as a vehicle to grant a defense motion and make uncontroversial observations about evidence available in 1981. If Judge McRae and Galanos had ex parte dealings regarding the psychiatrist order, such interactions, without more, are in no way symptomatic of the kind of prejudice, hostility and antagonism required to support a finding of judicial bias.
Rl-22 at 58 n. 71. Based on a thorough review of the record, we conclude that the Alabama courts’ denial of Whisenhant’s judicial bias claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law as determined by the Supreme Court. We therefore deny relief on this claim.
III. CONCLUSION
Whisenhant filed this appeal seeking federal habeas relief from his second conviction and third death sentence for the 1977 murder of Cheryl Payton. We hold that Whisenhant received effective assistance of counsel at his 1981 trial because trial counsel made a reasonable, strategic decision not to present evidence of insanity. In addition, the FBI profile reports and a co-worker’s statement were not material to either the 1981 guilt phase trial, where no evidence of insanity was presented, or to the 1987 penalty phase trial, where abundant evidence of mental illness was presented. The prosecutor’s closing argument that no co-worker had testified that Whisenhant was insane did not misstate the evidence and properly responded to the defense’s closing argument. Finally, the trial judge did not evince bias or partiality against Whisenhant when it signed an order prior to the 1987 trial granting Whisenhant’s motion for funds for a psychiatrist. As Whisenhant is not entitled to relief on any of his claims, the judgment of the district court is
AFFIRMED.
A detailed statement of facts set forth in Whisenhant v. State, 370 So.2d 1080, 1081-86 (Ala.Cr.App.1979), was adopted by the Alabama Supreme Court in Ex Parte Whisenhant, 555 So.2d 235 (Ala.1989).
Whisenhant pled guilty in 1981 to the first-degree murders of Venora Hyatt and Patricia Hitt and received a sentence of life without parole for each offense.