Harry Clifton Russell, alias v. State of Alabama

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Rel: 03/05/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-07-1956 Harry Clifton Russell v. S t a t e o f Alabama Appeal PER Court CURIAM. The appellant, murdering Derrick 1975. from Etowah C i r c u i t (CC-03-574) The c i r c u i t Harry "Shorty" court Clifton R u s s e l l , was c o n v i c t e d Anderson, sentenced of s e e § 13A-6-2, A l a . Code h i m t o 50 y e a r s i n prison CR-07-1956 and directed treatment The that he shooting that in a long-term mental Secure evaluations r e s u l t e d i n Anderson's death Initially, assist his attorney Medical and R u s s e l l was health Facility. h e a r i n g s the pleaded not committed to After circuit by several court, competent to s t a n d guilty reason occurred found incompetent to i n h i s d e f e n s e and was f o u n d t h a t R u s s e l l was Russell placed program. i n F e b r u a r y 2002. Hardin be Taylor subsequent i n November 2007, trial. of I n May mental 2008, disease or defect. The State's evidence 16, February Post The auxiliary on parking had were 2002, police i n Etowah County lot. that tended shooting was evening l o t of the f o r 25 Anderson witnessed of February American years, and the Russell then gun at Anderson's walked the to was by an 16, American and saw Legion McAlpine, McAlpine he into Russell, He away, M c A l p i n e 2 said, the the whom said when R u s s e l l p u l l e d o u t a pulled an testified drove talking. c h e s t , and On i n the p a r k i n g Michael 2002, Anderson following. shot Legion. Legion they t a l k e d f o r s e v e r a l minutes pointed show called member o f t h e A m e r i c a n the known after to he that gun, trigger. maybe s i x s t e p s and CR-07-1956 returned put and the gun testified Legion, fired two more s h o t s i n his pocket that Russell at Anderson. and walked a regular was away. socialize with McAlpine patron that R u s s e l l kept to h i m s e l f , and shooting Haley pop." The cars Russell that was in he he saw Post, but away never for the American Legion Legion February Post 16, American others, a to the not third parking problems and not that another he that see of evening. man order h e a r d a "pop, the the way s a i d , he saw shot, he lot. Haley that R u s s e l l was a pop, e n t r a n c e of because of before, the testified Russell the did historian Post. that investigate 2002. could detective testified evening coming from the the caused well with Department, he the earlier and minutes l a t e r from mix Harris, Anderson After not Mark Russell s a i d , was were p a r k e d . Russell the Harvey Haley, J r . , b u i l d i n g on seen a b o u t 30 s o u n d , he walking the had that that American Legion the he that testified s a n d w i c h and further others. that and at then that Russell did A n o t h e r member o f t h e A m e r i c a n L e g i o n , testified Russell Det. he with was the Harris 3 the called events testified Gadsden to the Police American that occurred on that a f t e r he was CR-07-1956 informed last of the known Det. of the address. The the condition; entering identity door and front exiting Harris and the house, was another house. walking. Russell Det. house. A revolver. revolver Both was Det. Miranda 1 Russell evidence rights. He and made by stopped him the Det. that t h e S t a t e and took that was Russell's i n very up, and one of Russell the returned poor windows. to Russell's the house and about one block Russell was carrying the defense Miranda exit started from his .38 that the him his calm stipulated a and weapon. Russell into testified he signed following custody that a and Russell read was waiver-of-rights statement, which was read Harris: "On [ F e b r u a r y 1 6 ] o f [ 2 0 0 2 ] I was at [ t ] h e American Legion on Eighth Street when an FBI b u l l e t i n came a c r o s s t h e TV s c r e e n t h a t a g u y t h e r e was g o i n g t o k i l l me. I know t h e man from s e e i n g him i n the L e g i o n the p a s t c o u p l e of months, but I do n o t know h i s name. 1 was and t h e y w a i t e d f o r R u s s e l l t o revealed Harris respectful officer from the murder went t o said, through emerged Harris search he boarded house r e s i d e n c e the next morning the s h o o t e r he v. A r i z o n a , 384 U.S. 4 436 (1966). form. into CR-07-1956 " S h o r t l y a f t e r t h e news b u l l e t i n , t h e man g o t up and had some f o o d i n h i s h a n d s a n d p o i n t e d h i s f i n g e r a t me i n a threatening gesture. He then w a l k e d o u t s i d e and I went o u t s i d e b e h i n d him b e c a u s e I was g o i n g t o go t o t h e m o v i e s . "When I g o t o u t s i d e , t h e man l o o k e d a t me i n a t h r e a t e n i n g manner and I f e l t t h a t I had t o d e f e n d m y s e l f , so I p u l l e d my p i s t o l a n d s h o t h i m . The man f e l l t o t h e ground and I s h o t him a c o u p l e o r [ s i c ] m o r e t i m e s u n t i l I f e l t t h a t he was no l o n g e r a threat. " I t h e n l e f t and went t o t h e m o v i e s and w a t c h e d ' B l a c k Hawk D o w n . ' When t h e m o v i e was over, I w a l k e d a r o u n d f o r a w h i l e a n d t h e n w e n t home The n e x t m o r n i n g , I w o k e up w i t h t h e p o l i c e a t my h o u s e . I d i d n ' t a n s w e r t h e m a t t h e d o o r o r when t h e y c a l l e d f o r me, b u t when I t h o u g h t t h e y l e f t , I u n l o a d e d my p i s t o l a n d l e f t t o go t o t h e c r e e k t o t h r o w t h e gun away b u t was a r r e s t e d when I g o t away f r o m my house." (R. 223-25.) Betty defense. j o i n e d the Terrell, She United began w o r k i n g a t Depot, the D e p o t he testified she S t a t e s Army a f t e r g r a d u a t i n g . a m i s s i l e r e p a i r m a n and l e a v i n g the the half-sister, s a i d that R u s s e l l e x c e l l e d i n school Army R u s s e l l was After Russell's Army he the won to school 5 to that While i n moved i n w i t h T e r r e l l ' s A n n i s t o n Army D e p o t . his he the numerous a w a r d s . He s a i d , because of poor hygiene. returned and in was mother fired After s t u d y t o become a and from leaving nurse. CR-07-1956 He later w o r k e d i n G u n t e r s v i l l e as keep the j o b for Terrell R u s s e l l was that he associate care, testified f i d g e t y , t h a t he frequently with that psychiatrist he did not long. further talked a nurse, but people, his that often about that he after looked the had psychiatrist leaving over h i s FBI, that been died, Army shoulder, he did not under p s y c h i a t r i c and that d i e d R u s s e l l stopped going to the s a i d t h a t at the the t i m e o f h i s a r r e s t R u s s e l l was when his doctor. She living in an a b a n d o n e d h o u s e t h a t had no r u n n i n g w a t e r o r e l e c t r i c i t y . The h o u s e had b e l o n g e d t o t h e i r s i s t e r , who The s i s t e r ' s c h i l d r e n had had had p a s s e d away. Russell arrested for trespassing. R u s s e l l a l s o p r e s e n t e d t h e t e s t i m o n y o f two experts -- Dr. P a t r i c i a P i l k i n t o n and Dr. P i l k i n t o n , a p s y c h i a t r i s t at Taylor Hardin, evaluated R u s s e l l before trial and f r o m J u l y 2006 t o November 2 0 0 7 . Russell was initially -- he was breaking t h a t were n o t and f r o m r e a l i t y and real. Dr. James H o o p e r . by Dr. he was her Denise f o u n d t o have a seeing and she patient that Perone, a psychosis hearing things Perone determined t h a t R u s s e l l 6 Dr. t e s t i f i e d that Dr. P i l k i n t o n t e s t i f i e d examined p s y c h i a t r i s t at T a y l o r Hardin, that mental-health was CR-07-1956 paranoid a n d was h a v i n g P e r o n e became i l l , eventually opinion a She s a i d t h a t when D r . R u s s e l l was t r e a t e d b y D r . H o o p e r a n d was transferred to her care. I t was D r . P i l k i n t o n ' s t h a t when R u s s e l l s h o t A n d e r s o n he was s u f f e r i n g f r o m severe mental appreciate defect the nature Pilkinton Russell delusions. further had a schizophrenic, that i n t e r f e r e d with and c h a r a c t e r testified serious and t h a t that of h i s actions. i t was mental h i s a b i l i t y to her opinion illness, he h a d p r o b a b l y that suffered he that manifests that behavior and/or Russell was and he was i s a life-long She disorder i t s e l f by a n t i s o c i a l behavior f o l l o w e d by acute symptoms prescribed that schizophrenia that from the i l l n e s s f o r some t i m e w i t h o u t b e i n g d i a g n o s e d o r t r e a t e d . further testified Dr. are characterized aggression. acutely by delusions Dr. P i l k i n t o n psychotic and very and erratic testified anxious. that She a d i f f e r e n t a n t i p s y c h o t i c f o r R u s s e l l , she s a i d , began taking care of h i s personal hygiene. Dr. P i l k i n t o n f u r t h e r t e s t i f i e d that i f R u s s e l l stopped t a k i n g h i s m e d i c a t i o n h i s symptoms w o u l d On c r o s s - e x a m i n a t i o n , possible that reappear. D r . P i l k i n t o n t e s t i f i e d t h a t i t was some p e o p l e h a d l u c i d 7 i n t e r v a l s even d u r i n g a CR-07-1956 p e r i o d when t h e i r m e n t a l c a p a c i t y was d e c l i n i n g . She s t a t e d t h a t R u s s e l l had h e l d a l i c e n s e d - p r a c t i c a l - n u r s e l i c e n s e u n t i l 1997. Dr. P i l k i n t o n f u r t h e r actions during stated and i m m e d i a t e l y that a f t e r the shooting i n t e r p r e t e d as g o a l - d i r e c t e d b e h a v i o r , provides the some o f R u s s e l l ' s could a t e r m w h i c h she s a i d i n d i c i a o f " l o g i c a l , thoughtful, forward t h i n k i n g " or intention According to achieve a desired result. t o Dr. P i l k i n t o n , R u s s e l l f e l t v i c t i m , a n d he knew t h a t i f he s h o t (R. 363.) threatened by the the v i c t i m the v i c t i m w o u l d n o t be a b l e t o i n j u r e h i m . D r . P i l k i n t o n t e s t i f i e d Russell be took specific actions with intended results. that She c o n c e d e d t h a t R u s s e l l d i d n o t r e s p o n d t o t h e p o l i c e when t h e y came t o h i s h o u s e a n d t h a t he removed t h e b u l l e t s f r o m t h e gun and attempted to dispose p o l i c e had l e f t . crime o f t h e gun a f t e r With regard just inconsistent walked with away thought the to R u s s e l l ' s departure from the s c e n e , Dr. P i l k i n t o n s t a t e d Russell he that following her diagnosis. t h e manner i n w h i c h the Further, shooting was Dr. P i l k i n t o n t e s t i f i e d t h a t she was n o t aware o f a n y o b j e c t i v e e v i d e n c e o r documented mental history illness that before Russell the offense 8 suffered except any symptoms o f f o r allowing h i s CR-07-1956 nursing lose l i c e n s e t o l a p s e ; Dr. P i l k i n t o n c o n c e d e d t h a t their professional people l i c e n s e s f o r d i f f e r e n t reasons and t h a t t h e c h a n g e s i n R u s s e l l ' s l i f e s t y l e c o u l d be d e s c r i b e d i n relation to or a t t r i b u t e d to things other than j u s t mental disease. Dr. Hooper, the director services at Taylor Hardin, paranoid while delusions of medical testified and p s y c h i a t r i c t h a t R u s s e l l was having he was t r e a t i n g h i m a n d t h a t he h a d a m e n t a l i l l n e s s f o r q u i t e some t i m e b e f o r e the shooting. Dr. H o o p e r t e s t i f i e d t h a t R u s s e l l was c o n s i s t e n t i n h i s r e c i t a t i o n of the d e t a i l s threatened o f the shooting h i m a n d was g o i n g and s t a t e d to k i l l t h a t Anderson had him and t h a t Russell's a c t i o n s were c o n s i s t e n t w i t h someone w i t h a m e n t a l i l l n e s s and t h a t he b e l i e v e d illness t h a t R u s s e l l was s u f f e r i n g f r o m t h i s a t the time o f the s h o o t i n g . On c r o s s - e x a m i n a t i o n , the mental v i c t i m , walking Dr. H o o p e r t e s t i f i e d that shooting s e v e r a l f e e t away, and then w a l k i n g t o t h e v i c t i m and s h o o t i n g back h i m two more t i m e s w h i l e he l a y on t h e g r o u n d c o u l d be v i e w e d as c o n s i s t e n t w i t h R u s s e l l ' s b e l i e f that he was d e f e n d i n g h i m s e l f , b u t a l s o c o u l d with someone who i n t e n d s to k i l l 9 be consistent a p e r s o n a n d w a n t e d t o make CR-07-1956 certain that the person Russell was intended to k i l l was dead. capable the Dr. of Hooper f u r t h e r forming intent testified and victim: " [ P r o s e c u t o r ] : And l e t me ask you t h i s : Was R u s s e l l c a p a b l e , i n your o p i n i o n , o f f o r m i n g i n t e n t to k i l l at that p o i n t i n time? " [ D r . H o o p e r ] : I t h i n k he i n t e n t , yes, s i r . was " [ P r o s e c u t o r ] : So b a s e d on t o k i l l Mr. A n d e r s o n ? "[Dr. Hooper]: I t h i n k Anderson, yes, s i r . " (R. 424.) The that he f o l l o w i n g then capable of forming h i s a c t i o n s , he did intend to Mr. an an intended kill Mr. occurred: " [ P r o s e c u t o r ] : Okay. Now, you t h i n k he u n d e r s t o o d t h e c o n c e p t o f s e l f - d e f e n s e and d i d n ' t b e l i e v e t h a t he was d o i n g a n y t h i n g w r o n g ? "[Dr. Hooper]: Yes, s i r . " [ P r o s e c u t o r ] : W e l l , c o u l d you t e l l me then h i d i n g t h e gun w o u l d n o t be an i n d i c a t i o n o f u n d e r s t a n d i n g i t was wrong t o have s h o t someone "[Dr. Hooper]: Well how him -- -- " [ P r o s e c u t o r ] : -- o r a t t e m p t i n g t o h i d e t h e g u n ? I mean, I can understand if you're acting in s e l f - d e f e n s e and you b e l i e v e t h a t and t h a t ' s y o u r t h o u g h t , you know, t h a t t h e s n a k e s a r e u n d e r t h e c h a i r and I'm a c t i n g i n s e l f - d e f e n s e and I s h o o t s o m e o n e , I can u n d e r s t a n d how I would c a l l the p o l i c e , how I w o u l d g e t some h e l p , how I w o u l d t u r n i n t h e g u n , how t h e t h r e a t ' s no l o n g e r t h e r e , b e c a u s e I h a v e n ' t done a n y t h i n g w r o n g ; I have n o t h i n g t o f e a r 10 he CR-07-1956 and I c e r t a i n l y d o n ' t have any r e a s o n t o t h r o w -h i d e my gun -- to " " [ P r o s e c u t o r ] : B u t how i s i t t h a t t h a t w o u l d n o t be a w r o n g f u l a c t ? Or a t l e a s t an e x a m p l e o f o b j e c t i v e a c t i o n so s h o w i n g t h a t he u n d e r s t o o d t h e w r o n g f u l n e s s o f what he d i d ? " " [ D r . H o o p e r ] : Okay. I t h i n k t h a t t h a t goes a l o n g w i t h t h e f a c t t h a t Mr. R u s s e l l , i n h i s m i n d , was r e c e i v i n g i n p u t f r o m t h e F B I . I f he f e l t l i k e he was b e i n g t h r e a t e n e d t h e n , I mean, I d o n ' t t h i n k t h a t t h i s i s a s i n g l e e v e n t where s u d d e n l y he g e t s t h i s message t h a t t h i s guy i s g o i n g t o k i l l him. Because I t h i n k most o f u s , i f we were s i t t i n g somewhere and t h e TV s e t s u d d e n l y s a i d 'somebody's g o i n g t o k i l l y o u , ' t h a t we w o u l d n o t j u s t i m m e d i a t e l y g r a b a gun and s h o o t w h o e v e r t h e y s a i d ; we w o u l d wonder what was g o i n g on. " I t h i n k t h a t Mr. R u s s e l l ' s w a l k i n g away and n o t responding to the p o l i c e i s a l l c o n s i s t e n t w i t h t h a t . I d o n ' t know w h e t h e r he was h i d i n g t h e gun o r g e t t i n g r i d o f t h e gun a n d , I m e a n , I d o n ' t know t h a t a n y b o d y knows t h a t . I can -- I d o n ' t see t h a t as an i n c o n s i s t e n t a c t , b u t i t a l s o c o u l d be c o n s i s t e n t w i t h somebody who was t r y i n g t o c o v e r up t h e c r i m e . I mean, you know, I c a n ' t g i v e you a l o g i c a l a n s w e r to that." (R. 425-26.) that (Emphasis Russell's added.) Dr. Hooper f u r t h e r a c t of a t t e m p t i n g to d i s c a r d t h e gun testified was not c o n s i s t e n t w i t h the t h e o r y t h a t R u s s e l l b e l i e v e d t h a t h i s l i f e was still in danger. 11 CR-07-1956 "[Dr. H o o p e r ] : Yeah, t h a t i s o l a t e d c o n s i s t e n t as t h e r e s t o f i t . event i s n o t as " [ P r o s e c u t o r ] : And t h a t ' s j u s t l i k e l e a v i n g the scene. I f you're not g u i l t y of a n y t h i n g or don't recognize the wrongfulness of anything, that's or r u n n i n g from the or t r y i n g to avoid the p o l i c e ? "[Dr. Hooper]: Right. I t h i n k that those things are all highly consistent. I think t h a t he felt p a r a n o i d , was n o t t r u s t f u l o f o t h e r p e o p l e . He p e r c e i v e d a message t h a t t h e F B I was g o i n g t o k i l l h i m o r t h a t t h e F B I was t e l l i n g h i m t h a t t h i s guy was g o i n g t o k i l l h i m . He s h o t t h a t guy, t h e n he t h o u g h t a b o u t i t a n d s h o t h i m some more t o make s u r e he was d e a d , t h e n he l e f t w e n t b a c k t o h i s h o v e l he was l i v i n g i n , he d i d n ' t come o u t when t h e p o l i c e c a l l e d h i m a n d he d i d a p p a r e n t l y g e t t r y t o go g e t r i d o f t h e gun. T h a t d o e s n ' t f i t i n t o t h e s t o r y v e r y w e l l . T)-,-, AABut iA t " [ P r o s e c u t o r ] : T h a t i s an o b j e c t i v e a c t t h a t shows o w o u l d t e n d t o show, does i t n o t , t h a t he r e c o g n i z e d he h a d done s o m e t h i n g w r o n g . Does i t n o t ? "[Dr. Hooper]: I t I d o n ' t s e e i t as s u c h , b u t I u n d e r s t a n d t h a t i t c o u l d be s e e n as s u c h . "[Prosecutor]: Right. Well, i f a person d i d u n d e r s t a n d t h a t t h e y h a d done s o m e t h i n g wrong by s h o o t i n g someone, w o u l d n ' t t h e l o g i c a l a n d c o r r e c t p r o c e d u r e f o r them t o be -- f o r them t o do w o u l d be t o g e t r i d o f t h e gun? T h a t ' s what a l o g i c a l m u r d e r e r w o u l d do, r i g h t ? "[Dr. Hooper]: I guess. " [ D r . H o o p e r ] : I mean, I g u e s s . I mean, I'm n o t s u r e what t h e l o g i c o f c o m m i t t i n g a m u r d e r p r o b a b l y i s . 12 CR-07-1956 "[Prosecutor]: I understand that. " [ D r . H o o p e r ] : I mean, y e a h , g e t t i n g r i d o f t h e weapon i s s o m e t h i n g t h a t l o t s o f p e o p l e t h a t commit c r i m e s do. " [ P r o s e c u t o r ] : A n d t h a t i s an i n d i c a t i o n , i s i t n o t , t h a t he u n d e r s t o o d t h e w r o n g f u l n e s s o f what h e ' d done? " [ D r . H o o p e r ] : W e l l , y o u ' r e t r y i n g t o g e t me t o s a y t h a t i t shows t h a t he knew i t was wrong a n d I'm s a y i n g t h a t I'm n o t r e a l l y s u r e what was g o i n g on. " [ P r o s e c u t o r ] : L e t me p u t i t t h i s way: I s n ' t t h a t j u s t as much an i n d i c a t i o n t h a t he knew t h a t i t was wrong as i t i s an i n d i c a t i o n t h a t he was o p e r a t i n g u n d e r d e l u s i o n ? C o u l d n ' t i t go e i t h e r way? " [ D r . H o o p e r ] : T h a t p a r t i c u l a r a c t , y e a h , i t c o u l d go e i t h e r way. " [ P r o s e c u t o r ] : Okay. Now, y ' a l l d i d n ' t g e t t o s e e h i m t o e v a l u a t e h i m -- t o s t a r t o b s e r v i n g h i m u n t i l o v e r -- w e l l o v e r t h r e e y e a r s f r o m t h e t i m e t h i s c r i m e occurred? "[Dr. Hooper]: Yes. " [ P r o s e c u t o r ] : A n d d u r i n g t h a t p e r i o d o f t i m e , he was i n c a r c e r a t e d , as f a r a s y o u know? "[Dr. Hooper]: Yes, s i r . " [ P r o s e c u t o r ] : A s f a r as y o u know, he was r e c e i v i n g no t r e a t m e n t , no m e d i c a t i o n , no a n y t h i n g l i k e t h a t ? "[Dr. H o o p e r ] : A s f a r a s I know, y e s , sir. " [ P r o s e c u t o r ] : A r e t h e r e n o t some p e o p l e w o r l d who j u s t c a n ' t s t a n d i n c a r c e r a t i o n ? 13 i n this CR-07-1956 "[Dr. Hooper]: Yes, sir. " [ P r o s e c u t o r ] : A r e t h e r e n o t some p e o p l e i n t h i s w o r l d who a c t u a l l y maybe a r e n o t m e n t a l l y i n c o m p e t e n t b e f o r e t h e y go t o j a i l , b u t when t h e y g e t t o j a i l t h e y become m e n t a l l y i n c o m p e t e n t b e c a u s e t h e y d o n ' t -- t h e y j u s t c a n ' t s t a n d b e i n g l o c k e d up? "[Dr. Hooper]: Yes, sir. " [ P r o s e c u t o r ] : How do y o u know h e ' s n o t one o f t h o s e people? " [ D r . H o o p e r ] : I d o n ' t have any h a r d e v i d e n c e t o s a y t h a t . I mean, you know, t h a t ' s a p o s s i b i l i t y . Based on t h i r t y y e a r s o f s e e i n g p a t i e n t s a n d b e i n g a t T a y l o r Hardin f o r twenty y e a r s , I don't t h i n k t h a t ' s what's happened. But I can't prove i t . " [ P r o s e c u t o r ] : I t ' s a s u b j e c t i v e d e c i s i o n on y ' a l l ' s part? " [ D r . H o o p e r ] : Y e s , s i r . I t i s an o p i n i o n t h a t a l l o f the p s y c h i a t r i s t s s h a r e , b u t yeah. " [ P r o s e c u t o r ] : A n d i t c e r t a i n l y w o u l d have b e e n a w h o l e l o t b e t t e r o r you w o u l d -- l e t me p u t i t t h i s way: Would y o u have f e l t more c o m f o r t a b l e w i t h y o u r o p i n i o n i f you c o u l d have s e e n h i m , s a y , a week a f t e r i t happened? " [ D r . H o o p e r ] : Oh, y e a h , i t ' s a l w a y s somebody a s soon as p o s s i b l e . " (R. 430-34.) (Emphasis better t o see added.) The S t a t e p r e s e n t e d no m e n t a l - h e a l t h e x p e r t o f i t s own b u t r e l i e d on t h e e v i d e n c e p r e s e n t e d b y a n d t h e c r o s s - e x a m i n a t i o n of the defense's two e x p e r t s . 14 CR-07-1956 R u s s e l l argues on a p p e a l t h a t t h e c i r c u i t court erred i n not o v e r t u r n i n g the j u r y ' s v e r d i c t and/or g r a n t i n g h i s motion for a new trial the great weight that the weight because, of the he argues, evidence. of the evidence the v e r d i c t was Specifically, showed t h a t he against he argues a mental had d i s e a s e or d e f e c t t h a t r e n d e r e d him l e g a l l y i n s a n e a t the time of the s h o o t i n g . R u s s e l l moved f o r a new t r i a l a r g u i n g t h a t the v e r d i c t c o n t r a r y t o law or the w e i g h t of the e v i d e n c e . preserved f o r appellate review. 2d 1223 In the ( A l a . C r i m . App. Johnson This issue was See Zumbado v. S t a t e , 615 So. 1993). d i s c u s s i n g the d i s t i n c t i o n between the s u f f i c i e n c y evidence v. and State, the weight 555 was So. of 2d the 818 evidence, this (Ala. Crim. Court App. in 1989), stated: "The weight of the evidence i s clearly a different matter from the sufficiency of the e v i d e n c e . The s u f f i c i e n c y o f t h e e v i d e n c e c o n c e r n s the q u e s t i o n of whether, 'viewing the evidence i n the l i g h t most f a v o r a b l e t o t h e p r o s e c u t i o n , [a] r a t i o n a l f a c t f i n d e r c o u l d have f o u n d the d e f e n d a n t g u i l t y b e y o n d a r e a s o n a b l e d o u b t . ' T i b b s v. F l o r i d a , 457 U.S. 31, 37, 102 S.Ct. 2211, 2216, 72 L.Ed.2d 652 ( 1 9 8 2 ) . A c c o r d , P r a n t l v. S t a t e , 462 So. 2d 781, 784 (Ala. C r . App. 1 9 8 4 ) . The e v i d e n c e i n t h i s c a s e i s 15 of CR-07-1956 c l e a r l y s u f f i c i e n t t o s u p p o r t t h e c o n v i c t i o n s . See Donahoo v. S t a t e , 505 So. 2d 1067, 1070 ( A l a . Cr. App. 1 9 8 6 ) ; Ward v. S t a t e , 484 So. 2d 536, 537-38 ( A l a . C r . App. 1985). "In c o n t r a s t , ' [ t ] h e "weight of the e v i d e n c e " r e f e r s t o "a d e t e r m i n a t i o n [by] t h e t r i e r o f f a c t t h a t a g r e a t e r amount o f c r e d i b l e e v i d e n c e s u p p o r t s one s i d e o f an i s s u e o r c a u s e t h a n t h e o t h e r . " ' T i b b s v. F l o r i d a , 457 U.S. a t 37-38, 102 S.Ct. a t 2216 ( e m p h a s i s a d d e d ) . We have r e p e a t e d l y h e l d t h a t i t i s not the p r o v i n c e of t h i s c o u r t to reweigh the e v i d e n c e p r e s e n t e d a t t r i a l . E.g., F r a n k l i n v. S t a t e , 405 So. 2d 963, 964 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 405 So. 2d 966 ( A l a . 1 9 8 1 ) ; Crumpton v. S t a t e , 402 So. 2d 1081, 1085 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 402 So. 2d 1088 ( A l a . 1 9 8 1 ) ; N o b i s v. S t a t e , 401 So. 2d 191, 198 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 401 So. 2d 204 ( A l a . 1 9 8 1 ) . ' " [ T ] h e c r e d i b i l i t y o f w i t n e s s e s and the weight or p r o b a t i v e f o r c e of testimony i s f o r the j u r y t o j u d g e and d e t e r m i n e . " ' H a r r i s v. S t a t e , 513 So. 2d 79, 81 ( A l a . C r . App. 1987) ( q u o t i n g B y r d v. S t a t e , 24 A l a . App. 451, 136 So. 431 ( 1 9 3 1 ) ) . I n t h i s c a s e , t h e c o n f l i c t i n g e v i d e n c e o f f e r e d by t h e s t a t e and by J o h n s o n s i m p l y p r e s e n t e d a j u r y q u e s t i o n , Gunn v. S t a t e , 387 So. 2d 280, 282 ( A l a . C r . A p p . ) , c e r t . d e n i e d , 387 So. 2d 283 ( A l a . 1 9 8 0 ) , and t h e v e r d i c t s r e n d e r e d t h e r e o n a r e c o n c l u s i v e on a p p e a l , R o b e r s o n v. S t a t e , 162 A l a . 30, 32, 50 So. 345, 346 (1909); B r a g g v. S t a t e , 518 So. 2d 847, 849 ( A l a . C r . App. 1987). " 555 So. 2d a t 819-20. S e c t i o n 13A-3-1, A l a . Code 1975, provides: "(a) It i s an affirmative defense to a p r o s e c u t i o n f o r any c r i m e t h a t , a t t h e t i m e o f t h e commission of the a c t s c o n s t i t u t i n g the o f f e n s e , the d e f e n d a n t , as a r e s u l t o f s e v e r e m e n t a l d i s e a s e o r d e f e c t , was unable to a p p r e c i a t e the nature and 16 CR-07-1956 q u a l i t y or wrongfulness of h i s a c t s . Mental d i s e a s e o r d e f e c t does n o t o t h e r w i s e c o n s t i t u t e a d e f e n s e . "(b) ' S e v e r e m e n t a l d i s e a s e o r d e f e c t ' does n o t i n c l u d e an a b n o r m a l i t y m a n i f e s t e d o n l y by r e p e a t e d c r i m i n a l or otherwise a n t i s o c i a l conduct. " ( c ) The d e f e n d a n t has t h e b u r d e n o f p r o v i n g t h e defense of insanity by clear and convincing evidence." In Sistrunk 1 9 8 4 ) , we v. State, 455 So. 2d 287 ( A l a . Crim. d i s c u s s e d t h e b u r d e n on a d e f e n d a n t who g u i l t y by r e a s o n o f m e n t a l d i s e a s e o r d e f e c t . We pleads stated: " A p p e l l a n t p l e a d e d n o t g u i l t y by r e a s o n of i n s a n i t y , thereby s a d d l i n g h i m s e l f w i t h the heavy b u r d e n o f p r o v i n g h i s i n s a n i t y by a p r e p o n d e r a n c e o f the evidence and to the jury's reasonable s a t i s f a c t i o n . See H e r b e r t v. S t a t e , 357 So. 2d 683, 688 ( A l a . C r i m . A p p . ) , c e r t . d e n i e d , 357 So. 2d 690 ( A l a . 1 9 7 8 ) . He s o u g h t t o p r o v e h i s l a c k o f c r i m i n a l r e s p o n s i b i l i t y through the t e s t i m o n y of s e v e r a l of h i s f a m i l y members as w e l l as e x p e r t w i t n e s s e s . A p p e l l a n t now a s s e r t s t h a t t h e v e r d i c t must be r e v e r s e d as a g a i n s t t h e w e i g h t o f t h e e v i d e n c e . "The b a s i c p r i n c i p l e s of law g o v e r n i n g the i n s a n i t y defense are summarized i n H e r b e r t , supra. They a r e : " ' 1 . By s t a t u t e , t h e r e i s a p r e s u m p t i o n o f s a n i t y e x t e n d i n g to a l l persons over the age o f 14. "'2. The defense of insanity is an a f f i r m a t i v e d e f e n s e . The b u r d e n o f p r o v i n g t h i s d e f e n s e r e s t s upon t h e d e f e n d a n t and never s h i f t s to the s t a t e . 17 App. not CR-07-1956 " ' 3 . The b u r d e n upon t h e d e f e n d a n t i s t o e s t a b l i s h t h e i s s u e o f l e g a l i n s a n i t y by a preponderance o f t h e e v i d e n c e and t o t h e reasonable s a t i s f a c t i o n of the j u r y . "'4. The q u e s t i o n o f i n s a n i t y a t t h e t i m e of the commission of the crime i s a matter to be determined by the jury from a c o n s i d e r a t i o n of a l l the evidence. "'5. I n making i t s d e t e r m i n a t i o n , the j u r y may r e j e c t a l l e x p e r t t e s t i m o n y t h o u g h i t i s without c o n f l i c t . "'6. However, o p i n i o n t e s t i m o n y , e v e n o f e x p e r t s must be w e i g h e d by t h e j u r y and may n o t be a r b i t r a r i l y i g n o r e d . ' " H e r b e r t i s one o f o n l y s e v e n c a s e s t o d a t e i n w h i c h an A l a b a m a a p p e l l a t e c o u r t has o v e r t u r n e d a m u r d e r c o n v i c t i o n on t h e g r o u n d t h a t t h e g u i l t y v e r d i c t ran a g a i n s t the overwhelming weight of the e v i d e n c e o f i n s a n i t y . See P i c k e t t v. S t a t e , 37 A l a . App. 410, 71 So. 2d 102, c e r t . d e n i e d , 260 A l a . 699, 71 So. 2d 107 ( 1 9 5 4 ) ; C h r i s t i a n v. S t a t e , 351 So. 2d 623 ( A l a . 1 9 7 7 ) ; Woods v. S t a t e , 364 So. 2d 1178 ( A l a . C r i m . A p p . ) , c e r t . d e n i e d , 364 So. 2d 1186 ( A l a . 1 9 7 8 ) ; S a s s e r v. S t a t e , 387 So. 2d 237 ( A l a . C r i m . A p p . ) , w r i t d e n i e d , 387 So. 2d 244 ( A l a . 1 9 8 0 ) ; S m i t h v. S t a t e , 411 So. 2d 839 (Ala. Crim. App. 1 9 8 2 ) ; and T u r n e r v. S t a t e , 455 So. 2d 910 ( A l a . 1984). In o r d e r f o r t h i s c o u r t t o r e v e r s e , e v i d e n c e o f i n s a n i t y must be ' o v e r w h e l m i n g , ' C h r i s t i a n , s u p r a a t 625; ' u n c o n t r a d i c t e d , ' H e r b e r t , s u p r a , a t 689; and ' c l e a r ... s t r o n g and u n d i s p u t e d , ' B o y l e v. S t a t e , 229 A l a . 212, 222, 154 So. 2d 575, 583 (1934). F u r t h e r m o r e , t h e r e may be no f a c t s i n e v i d e n c e w h i c h would support a reasonable inference that the d e f e n d a n t was s a n e . Compare Cunningham v. S t a t e , 426 So. 2d 484, 491 ( A l a . C r i m . App. 1 9 8 2 ) , c e r t . d e n i e d , 426 So. 2d 484 ( A l a . 1 9 8 3 ) , w i t h A l v i s v. S t a t e , 434 So. 2d 859, 864 ( A l a . Crim. App. 1983). In 18 CR-07-1956 Cunningham, t h i s c o u r t f o u n d t h a t ' [ t ] h e d e f e n d a n t ' s c o n d u c t and demeanor a f t e r t h e c r i m e p r o v i d e d a reasonable i n f e r e n c e of s a n i t y . ' But i n A l v i s , an a s s a u l t c a s e , t h e r e was n o t h i n g i n t h e d e f e n d a n t ' s c o n d u c t o r demeanor t o s u p p o r t t h e i n f e r e n c e t h a t h i s a c t s 'were t h o s e o f a sane man.' Alvis, id. "Because of the p r e s u m p t i o n of s a n i t y , the s t a t e i s not r e q u i r e d t o prove t h a t the defendant i s sane. See Dancy v. S t a t e , 437 So. 2d 620, 621 ( A l a . C r i m . App. 1 9 8 3 ) ; Cunningham, s u p r a , a t 490. A guilty v e r d i c t i s n o t a r b i t r a r y i f t h e r e c o r d r e v e a l s any f a c t s f r o m w h i c h t h e j u r y c o u l d have i n f e r r e d t h a t t h e d e f e n d a n t was sane a t t h e t i m e o f t h e crime. Cunningham a t 489. T h i s i s t r u e e v e n t h o u g h a l l t h e expert witnesses t e s t i f y t h a t the defendant was i n s a n e , b e c a u s e o f t h e r u l e t h a t t h e j u r y may r e j e c t even u n c o n t r a d i c t e d e x p e r t t e s t i m o n y . H e r b e r t , supra, a t 688. "As we n o t e d i n Cunningham, i t i s a r a r e c a s e i n w h i c h t h e j u r y ' s f i n d i n g w i l l be d i s t u r b e d i n f a v o r of the a p p e l l a n t ' s evidence of i n s a n i t y . A n a l y s i s of these cases r e q u i r e s a c a r e f u l e x a m i n a t i o n of the r e c o r d i n o r d e r t o d e t e r m i n e what, i f any, e v i d e n c e was a v a i l a b l e f r o m w h i c h t h e j u r y c o u l d reasonably c o n c l u d e t h a t t h e d e f e n d a n t knew what he was doing a n d / o r c o u l d have c o n t r o l l e d h i s c r i m i n a l b e h a v i o r . P r e s e n t a t i o n o f a mere r e a s o n a b l e doubt of s a n i t y does n o t a u t h o r i z e an a c q u i t t a l . B o s w e l l v. S t a t e , 63 A l a . 307, 326, 35 Am. Rep. 20 (1880)." 455 So. 2d a t 288-89. "'Although "a f a c t f i n d e r need not a d h e r e t o an e x p e r t o p i n i o n on i n c o m p e t e n c y if there i s reason to discount i t , " S t r i c k l a n d v . F r a n c i s , 738 F . 2 d 1 5 4 2 , 1552 (11th Cir. 1984 ) , "the jury cannot a r b i t r a r i l y ignore the e x p e r t s i n f a v o r of t h e o b s e r v a t i o n s o f l a y m e n , " i d . , and must h a v e an " o b j e c t i v e reason," to disregard 19 CR-07-1956 the e x p e r t ' s o p i n i o n which i s r e b u t t e d o n l y b y l a y t e s t i m o n y . W a l l a c e v . Kemp, 757 F . 2 d 1102, 1109 ( 1 1 t h C i r . 1 9 8 5 ) . "'"In making this judgment [ t o disregard the expert's opinion], the c o u r t should consider "'"(1) the c o r r e c t n e s s or adequacy of the factual assumptions on which the expert opinions are based; "'"(2) possible bias experts' appraisal defendant's c o n d i t i o n ; in of the the "'"(3) inconsistencies i n the experts' testimony, or material v a r i a t i o n s between e x p e r t s ; and "'"(4) t h e r e l e v a n c e and s t r e n g t h of t h e c o n t r a r y l a y testimony. " ' " S t r i c k l a n d , 738 F . 2 d a t 1552 ; B r o c k [ v . U n i t e d S t a t e s , ] 387 F . 2 d [254, 258 ( 5 t h C i r . 1967)] ( q u o t i n g Mims v . U n i t e d States, 375 F . 2 d 135, 143-44 (5th C i r . 1967))." " ' W a l l a c e v . Kemp, 757 F . 2 d a t 1 1 0 9 . ' " Dunaway 1 998), Crim. v. State, quoting 74 6 Ellis So. 2d v. S t a t e , App. 1990). 20 1021 , 1033 (Ala. Crim. App. 570 S o . 2 d 7 4 4 , 7 5 2 - 5 3 ( A l a . CR-07-1956 In d i s c u s s i n g the " o b j e c t i v e reasons" that w i l l support d i s r e g a r d i n g an e x p e r t ' s o p i n i o n , t h e U n i t e d S t a t e s C o u r t Appeals f o r the F i f t h of C i r c u i t has s t a t e d : " I t has b e e n r e c o g n i z e d t h a t e x p e r t o p i n i o n e v i d e n c e may be r e b u t t e d by s h o w i n g t h e i n c o r r e c t n e s s o r i n a d e q u a c y o f t h e f a c t u a l a s s u m p t i o n s on w h i c h t h e opinion i s based, 'the reasoning by which he p r o g r e s s e s from h i s m a t e r i a l t o h i s c o n c l u s i o n , ' the i n t e r e s t or b i a s of the e x p e r t , i n c o n s i s t e n c i e s or contradictions i n h i s testimony as to m a t e r i a l m a t t e r s , m a t e r i a l v a r i a t i o n s between the e x p e r t s t h e m s e l v e s , and d e f e n d a n t ' s l a c k o f c o - o p e r a t i o n w i t h the e x p e r t . A l s o , i n cases i n v o l v i n g o p i n i o n s of medical experts, the probative force of that c h a r a c t e r o f t e s t i m o n y i s l e s s e n e d where i t i s p r e d i c a t e d on s u b j e c t i v e symptoms, o r where i t i s b a s e d on n a r r a t i v e s t a t e m e n t s t o t h e e x p e r t as t o p a s t e v e n t s n o t i n e v i d e n c e a t t h e t r i a l . I n some c a s e s , t h e c r o s s e x a m i n a t i o n o f t h e e x p e r t may be s u c h as t o j u s t i f y t h e t r i e r o f f a c t s i n n o t b e i n g c o n v i n c e d by him. One o r more o f t h e s e f a c t o r s may, d e p e n d i n g on t h e p a r t i c u l a r f a c t s o f e a c h c a s e , make a j u r y i s s u e as t o t h e c r e d i b i l i t y and w e i g h t t o be g i v e n t o t h e e x p e r t t e s t i m o n y ; and i n d e t e r m i n i n g w h e t h e r s u c h i s s u e i s r a i s e d , due c o n s i d e r a t i o n must be g i v e n t o t h e f a c t t h a t t h e t r i e r o f f a c t s has t h e o p p o r t u n i t y t o o b s e r v e t h e w i t n e s s i f he t e s t i f i e s i n person." Mims v. U n i t e d S t a t e s , 375 ( f o o t n o t e s o m i t t e d ; emphasis F.2d 135, 143-44 (5th C i r . 1967) added). Dr. P i l k i n t o n t e s t i f i e d on c r o s s - e x a m i n a t i o n t h a t R u s s e l l did not come to Taylor Hardin until three years and months a f t e r t h e s h o o t i n g and t h a t i t w o u l d have b e e n 21 eight helpful CR-07-1956 t o have e v a l u a t e d h i m c l o s e r t o t h e t i m e o f t h e s h o o t i n g . s a i d t h a t she t r i e d t o g e t o u t s i d e r e c o r d s t o h e l p w i t h diagnosis treatment but could not obtain any h o s p i t a l records, She their any r e c o r d s , o r any v e t e r a n r e c o r d s r e l a t e d t o R u s s e l l . R u s s e l l h a d no d o c u m e n t e d m e n t a l i l l n e s s b e f o r e t h e s h o o t i n g . Dr. Pilkinton f u r t h e r t e s t i f i e d t h a t she b a s e d h e r o p i n i o n o f R u s s e l l ' s m e n t a l c o n d i t i o n on i n f o r m a t i o n he h a d s u p p l i e d t o her and o b s e r v i n g h i s conduct. individuals Dr. P i l k i n t o n d i d t e s t i f y that can l i e about t h e i r c o n d i t i o n , b u t she b e l i e v e d t h a t R u s s e l l was b e i n g t r u t h f u l . D r . Hooper t e s t i f i e d t o t h e f o l l o w i n g on c r o s s - e x a m i n a t i o n : "[Prosecutor]: A r e t h e r e n o t some p e o p l e i n t h i s w o r l d who a c t u a l l y maybe a r e n o t m e n t a l l y i n c o m p e t e n t b e f o r e t h e y go t o j a i l , b u t when t h e y g e t t o j a i l t h e y become m e n t a l l y i n c o m p e t e n t b e c a u s e t h e y d o n ' t -- t h e y j u s t c a n ' t s t a n d b e i n g l o c k e d up? "[Dr. Hooper]: Yes, sir. "[Prosecutor]: people? How do y o u know h e ' s n o t one o f t h o s e "[Dr. Hooper]: I d o n ' t have any h a r d e v i d e n c e t o s a y t h a t . I mean, y o u know, t h a t ' s a p o s s i b i l i t y . Based on t h i r t y y e a r s o f s e e i n g p a t i e n t s a n d b e i n g a t T a y l o r Hardin f o r twenty years, I don't t h i n k t h a t ' s what's happened. But I can't prove i t . " (R. 432-33.) 22 CR-07-1956 Although two experts from a mental d i s e a s e the jury had testimony. did testify or d e f e c t "objective T h e r e was a t the reasons" testified of his concerning actions. As Russell's m u r d e r and his Anderson. Here, the q u e s t i o n jury to behind attempt resolve. the jury's We for the he not ultimate reweigh the decision See The S i s t r u n k , supra. R u s s e l l ' s m o t i o n f o r a new after used the to Russell the going was not time of the c i r c u i t c o u r t d i d not err jury's a t the the kill for e v i d e n c e by that shooting. overturn witnesses o f R u s s e l l ' s s a n i t y was or d e f e c t to and had have q u a l i t y or above, during gun their jury could n a t u r e and from a mental d i s e a s e declining shooting, disregarding stated actions to hide will the suffered time of the suffering in Russell evidence from which the concluded that R u s s e l l appreciated wrongfulness that verdict and denying trial. II. Russell assistance failed to object to next of argues counsel make a he because, motion questioning that for by a the 23 he was denied says, directed his the trial verdict, prosecution effective as counsel failed to irrelevant, CR-07-1956 prejudicial, sentencing and argumentative, t h a t R u s s e l l was However, ineffective Russell assistance and f a i l e d to object during incompetent. did of not counsel present in his these claims of motion for new a trial. " ' " [ A ] n i n e f f e c t i v e - a s s i s t a n c e - o f - c o u n s e l c l a i m must be p r e s e n t e d i n a new t r i a l m o t i o n f i l e d b e f o r e the 30-day j u r i s d i c t i o n a l t i m e l i m i t s e t by R u l e 2 4 . 1 ( b ) , A l a . R. C r i m . P., e x p i r e s , i n o r d e r f o r t h a t c l a i m t o be properly preserved for review upon direct appeal."' [Montgomery v. S t a t e , 781 So. 2d 1007,] a t 1010 [ ( A l a . C r i m . App. 2 0 0 0 ) ] ( q u o t i n g Ex p a r t e I n g r a m , 675 So. 2d 863, 865 ( A l a . 1 9 9 6 ) ) . " Willingham 2001). thus, v. State, 796 So. 2d 440, 445 (Ala. Crim. These i s s u e s were n o t p r e s e r v e d f o r a p p e l l a t e they are not p r o p e r l y before this App. review; Court. For the f o r g o i n g r e a s o n s , R u s s e l l ' s c o n v i c t i o n f o r murder i s due t o be, and i s hereby, affirmed. AFFIRMED. Wise, P.J., dissents, with and Windom and M a i n , J J . , c o n c u r . opinion, which Kellum, J . , Welch, J . , joins. WELCH, J u d g e , d i s s e n t i n g . In a f f i r m i n g R u s s e l l ' s jury had objective reasons c o n v i c t i o n and for 24 in holding disregarding the that the extensive CR-07-1956 expert testimony severe, life-long appreciate actions the mental nature that disorder and legal principles be a b l e meet the l e g a l record first, clear in this the evidence and of defendant, his of mental established acts wrongfulness two that of severe mental s e e § 1 3 A - 3 - 1 , A l a . Code that arbitrarily provided the jury, overwhelming i n which against Therefore, defendant and I the undisputed This case that trial the the points: proved time of offense, disease or defect, or wrongfulness no objective evidence of by the the was of the record reason, ignored the opinions of the expert witnesses, disease or defect. rare cases of h i s to prove 1975; second, with to interpreted significant "at constituting a disease or defect. at Russell's t o a p p r e c i a t e t h e n a t u r e and q u a l i t y established is or from him unable standard necessary evidence as a r e s u l t acts," mental the rendered i n s u c h a way t h a t no presented convincing commission unable case suffered t h e m a j o r i t y has he o r s h e i s n o t g u i l t y b y r e a s o n The Russell that quality when he k i l l e d A n d e r s o n , long-standing will establishing who Russell's i s one o f t h e e x t r e m e l y a c o n v i c t i o n m u s t be o v e r t u r n e d b e c a u s e i t overwhelming dissent. 25 weight of the evidence. CR-07-1956 The m a j o r i t y has including the 13A-3-1, parameters sanity, a § and jury's of the to relevant majority has failed to that the law to the facts. presented and regarding The failed jury's of majority's to standing Pilkinton included nature of at the many d e t a i l s Russell's for Taylor Hardin maximum-security hospital. time the employee evaluator -- of not State hired by of is about the facts, applied the expert the evidence testimony disorder, a more experts's the s e v e r i t y and disorder. defense testimony Dr. that long¬ Patricia she was Secure She of that necessary. the mental the the mental evidence assess Medical Facility, stated that was Alabama either 26 a forth relevant incorrectly r e j e c t i o n of set believe of reviews regarding also the adequately discussion testified psychiatrist to longstanding discussion has a l l of has court opinion I defining presumption appellate However, majority principles, statute the majority forth order Russell's thorough set an legal the expert The facts. In the which state. -- defense, disregard the relevant 1975 insanity of I believe the Code s t a n d a r d s by mental and forth Ala. the decision defendant's some set and the was she an a a a full¬ independent prosecution or the CR-07-1956 defense. Dr. Pilkinton several times before care trial and that t h a t he evaluations Dr. pursuant Pilkinton examination, at "psychosis not psychotic with and Dr. Taylor symptoms, delusions. beard, Dr. he that he time, he was hospital with Staff a Hardin, psychotic an Hardin always are them being on having a l s o had Russell and not visual bad in body odor because symptoms because staff Russell Taylor 24 stated that staff patients's when watched. 27 the and a was hours for day-to-day patients had auditory long are being for Hardin duty patients a hygiene. on new a contact and his personal had Russell i t w o u l d have been d i f f i c u l t evaluate camera that Perone, meaning t h a t was Pilkinton members o b s e r v e t h e admission Denise paranoid observation Dr. Dr. was that her performed Russell's revealed maintaining stated week. observing they not Pilkinton his he Pilkinton by specified," the At feign Taylor that Russell a p a t i e n t under that Hardin, evaluated order. performed and t r e a t e d at T a y l o r days was otherwise reality, a court testified which psychiatrist to she was f r o m J u l y 2006 t o November 2007. her to stated a him is a day, 7 members at malingering. interactions, unaware that CR-07-1956 Dr. Dr. Pilkinton James H o o p e r b e g a n Dr. Hooper treated maintained that specified" as medications filed several mental "psychosis treated Russell not with or otherwise antipsychotic testified t h a t R u s s e l l was n e x t suffering his ability Russell suffered from diagnosed and t r e a t e d . takes time that to of the disease when defect that the disorder the patient nature testified that different 28 shot he h a d f o r years that schizophrenia also and i s young, she being is a that i t explained and t h a t and probably without phases, Dr. P i l k i n t o n i s a life-long Russell and t h a t She t e s t i f i e d i t has when appreciate illness transferred mental Dr. P i l k i n t o n mental to diagnose. schizophrenia that, a severe had s c h i z o p h r e n i a that disorder, stated from of h i s actions. brain with Dr. Hooper defect. Dr. P i l k i n t o n with reports Hooper serious believed phase a Dr. s t a t e d t h a t R u s s e l l was s u f f e r i n g f r o m a he was character had and t h a t court; her care. interfered f o r s i x months. that the t r i a l Pilkinton Anderson, Russell and Dr. P e r o n e became i l l , Dr. Perone's p a t i e n t s , forensic-status disease Dr. seeing Russell well, that f o r h i s h a l l u c i n a t i o n s and d e l u s i o n s . those reports to testified i n the that first the patient CR-07-1956 often seems behavior, and normal. dropping even an appearance. usually next a Dr. that this a l t h o u g h the final acute or and get experience and seem v a c a n t , much l i k e Dr. Pilkinton an patients that schizophrenic progression military, to losing nursing janitorial job at and very Russell a Wal-Mart Pilkinton testified anxious had he told day that the Taylor-Hardin when the believed she nurses that staff he that family does not. at delusions or Pilkinton stated for a short period, decline. In disease. this working license, to the dementia Alzheimer's from The treatment demonstrated downhill job, personal appear to have with Russell his Dr. overall patients a patient's have better hold one's usually patients antisocial to patient aggression. schizophrenia Dr. of the the symptoms, phase of believed inability that but because involves care stated b e h a v i o r s may patients an take behavior, behavior phase school, to facility erratic schizophrenic of Pilkinton involves psychiatric exhibit out second inability notices phase The common in the losing a store. t h a t R u s s e l l was treated him. at Taylor was being the 29 acutely She Hardin testified several poisoned. jailers at psychotic the that times Russell Etowah a told County CR-07-1956 jail had put pills in his food to perform homosexual a c t s . difficult to get residents. being Russell often the he had and same way he each gave description and time he club gesture Dr. one money he toward had him e l e c t r o n i c device that i t . shooting Pilkinton of Anderson in Pilkinton kill him. Russell 30 but even the d i d not interpreted Post time in because Russell Gadsden that a man know made a to he Russell's television her the i f the malingering. Legion through her, testified, Russell told seen b e f o r e that not American messages to Dr. consistency the was Russell at at he other schizophrenia t h a t R u s s e l l was other conspiring with of Dr. was Russell present. events received whom he that symptoms was to while the The i t with related significant, going that him r e c e i v i n g messages stated from the induce eat even e l s e was was to stated was Pilkinton description. he claim, t h a t he when no make acute the that that to or room t o j u d g e t o t a k e an and was her s o m e o n e was the the i n d i c a t e d to her told dining Russell described exhibiting that it with that the him Pilkinton that his attorney invented testified was television. Pilkinton attorneys to Hardin, t a l k e d to himself Dr. Dr. continued t r e a t e d at Taylor through told Russell to poison mean t h a t that at hand the CR-07-1956 person this a had was been schizophrenic killed the kill man him same police that the no of that the he day had shooting Dr. gave he out gun Russell Dr. the day acted i t the appreciated the Pilkinton testified, not answering the Dr. -- 31 he calmly went that he plan to to that was not simply left dispose of did not demonstrate of his conduct; rather, that i t does. I "I don't t h i n k -- the before Russell that was life. i n d i c a t i n g he but the to P i l k i n t o n noted Russell's wrongfulness sent maintained for his and he Pilkinton television that his that statement fear to hide, shooting door Dr. the crime, scene Pilkinton stated the of In f a c t , p o l i c e or been I note his significant of shooting. after had man R u s s e l l always and to elude the the in shooting. scene that the through the said life. messages that in R u s s e l l gave to Russell because things that in that Russell for his w a n d e r e d away f r o m t h e area. that believed shooting schizophrenia finds. received away f r o m the Dr. else P i l k i n t o n found Russell Pilkinton stated significance feared a f t e r the a movie a f t e r the trying he Dr. someone w i t h b e c a u s e he and him. finds one explanation one walked kill person that explanation the to c h a r a c t e r i s t i c of environment to sent hiding things is that think entirely CR-07-1956 consistent that in with s o m e b o d y who people Pilkinton that further we i s paranoid work testified a n d we with." that (R. i t would c e r t a i n l y see 373-74.) Dr. n o t be u n u s u a l f o r a schizophrenic to hide a weapon i f t h e p e r s o n b e l i e v e d were against him. conspiring Dr. Pilkinton stated care she p r e s c r i b e d that Russell symptoms several to months take of began care i f Russell would schizophrenic that are to Dr. taking Dr. Pilkinton before for Russell. VA r e c o r d s , in his hygiene. After believed that that h i s symptoms year. he d i d not have any of the shooting, but at the Veterans Dr. P i l k i n t o n s t a t e d to f a i l to realize that i t that they Dr. P i l k i n t o n a t t e m p t e d b u t t h e VA d e n i e d Dr. P i l k i n t o n t e s t i f i e d 32 and improvement d e p r e s s e d and had sought h e l p Russell's her Dr. P i l k i n t o n t e s t i f i e d the date ("VA") h o s p i t a l . under medication h i s medication, e x h i b i t i n g p s y c h i a t r i c symptoms. records came Pilkinton trial. not unusual f o r schizophrenics acquire show a few months o r a symptoms he h a d f e l t Administration is stopped told Russell h i s personal treatment, reappear w i t h i n Russell to of R u s s e l l was c o m p e t e n t t o s t a n d that after a different antipsychotic thereafter and that others that having any she had n o t CR-07-1956 located that this mental have any p s y c h i a t r i c or m i l i t a r y d i d not change h e r o p i n i o n illness. only Dr. P i l k i n t o n supplemented schizophrenia certainty that stated her s p e c i f i c from which R u s s e l l of her records for Russell, R u s s e l l had a severe that the records diagnosis suffered. would of the type She e x p l a i n e d diagnosis: "My h e a r t of hearts i s t h a t Mr. R u s s e l l has schizophrenia. And I've worked w i t h p e o p l e with schizophrenia extensively. That's an a r e a of i n t e r e s t o f mine and t h a t ' s what I t e a c h at the University. A n d I b e l i e v e t h a t t h a t ' s w h a t he h a s . And I b e l i e v e t h a t t h a t i n f l u e n c e d h i s b e h a v i o r , has d o m i n a t e d h i s l i f e f o r many y e a r s . And u n f o r t u n a t e l y we d i d n ' t p i c k t h a t u p . He p r o b a b l y w e n t u n d i a g n o s e d f o r a v e r y l o n g t i m e a n d t h a t i t was h i s d e l u s i o n s a n d h i s p a r a n o i a t h a t l e a d h i m t o -- " (R. 387.) Dr. Pilkinton further testified: "In working with people with schizophrenia, t r e a t i n g people with schizophrenia extensively i n state h o s p i t a l s and p r i v a t e p r a c t i c e , this is a p i c t u r e of schizophrenia. And I b e l i e v e t h a t h i s a c t i o n s were m o t i v a t e d by p a r a n o i a , by t h i s f e e l i n g o f p e r s e c u t i o n , t h e f e e l i n g t h a t he was g o i n g t o b e i m m i n e n t l y harmed or k i l l e d , and t h i s i s e n t i r e l y c o n s i s t e n t w i t h what I see f r o m o t h e r p a t i e n t s t h a t I work with with major mental illness like schizophrenia. So this i s what I do as my d a y - t o - d a y w o r k , w h a t I s p e n d m o s t o f my t i m e d o i n g . " (R. 387-88.) 33 but of the CR-07-1956 Finally, Dr. Pilkinton first-degree relative with of d e v e l o p i n g Russell's Dr. employee retained court a person Evidence at t r i a l of the that State by R u s s e l l . of He like Alabama an i m p a r t i a l o p i n i o n stated Dr. otherwise specified." R u s s e l l had p a r a n o i d at Taylor Pilkinton, and was that h i s j o b was not care the and t h a t F B I was Hooper signs that in Russell of improvement i t was Hardin this treated very an t o s e e s o m e o n e who occurred the s t a f f the h o s p i t a l . Dr. while that Dr. Hooper he was stated expert really was "psychosis stated he b e l i e v e d that the t e l e v i s i o n . Dr. and R u s s e l l Dr. staff showed Hooper members delusional 34 that Taylor and t h a t Russell no st ated at members a t t e m p t e d t o k e e p t h e stated that u n d e r Dr. Hooper's that time. f o r the Hooper an Dr. f o r s i x months, unusual was of R u s s e l l ' s mental s t a t e . to him through during Hardin. give Russell repeatedly communicating the to (R. 4 0 8 . ) delusions that issues. H o o p e r s t a t e d t h a t he d i a g n o s e d R u s s e l l a s h a v i n g a not a risk f o r t h e d e f e n s e t h a t he was he, also has indicated had u n i d e n t i f i e d m e n t a l - h e a l t h testified who h a s an i n c r e a s e d o f m e d i c a l and p s y c h i a t r i c s e r v i c e s Hooper the schizophrenia. sister that schizophrenia James H o o p e r t e s t i f i e d director Dr. stated when patient truly had CR-07-1956 been delusional testified mental that health Pilkinton enough while he he was going Taylor initially ever was was changed R u s s e l l ' s t o be at considered not Hardin. sure Dr. Hooper whether However, to improve. Russell's when medication R u s s e l l responded competent to stand trial, Dr. Dr. well Hooper said. Dr. details stated Hooper testified regarding that that Russell's Anderson's shooting Anderson had threatened him, and R u s s e l l the television stated from that the FBI. mental from illness. the p o l i c e consistent conspiracy that Dr. Russell's against R u s s e l l was him. time of the shooting him from a p p r e c i a t i n g often Hooper have also Hooper indicative stated that to dispose delusion that from a mental and t h a t stated bad hygiene. that With messages through o f someone with hiding o f t h e weapon there with kill the was t h a t he were an FBI believed or defect the mental i l l n e s s people to that disease medication, 35 going Russell's the n a t u r e and c h a r a c t e r the Russell stated Dr. Hooper t e s t i f i e d suffering the Dr. Hooper and a t t e m p t i n g with h i m a n d was Dr. of was c o n s i s t e n t . he h a d r e c e i v e d b e h a v i o r he o b s e r v e d i n R u s s e l l was a recitation at prevented of h i s a c t i o n s . mental Russell's illnesses personal CR-07-1956 hygiene have improved, a mental Dr. avoiding who knew he also had afraid of isolate he realize cross-examination actions believe Russell's that that he might that R u s s e l l has the others alone. in Dr. and Dr. Russell Hooper t h a t R u s s e l l had suffered time before before on and Hooper to that Russell were Russell redirect that he is Russell caused talk to himself these shot while behaviors Anderson It i s a l s o s i g n i f i c a n t t h a t R u s s e l l i n i t i a l l y was incompetent extensive declared in for quite and shooting. the from a mental i l l n e s s gun someone because stated paranoia stated a those behaviors illness sometimes with H o w e v e r , Dr. a global paranoia to long that Hooper global hiding consistent mental paranoia. everyone; manifested on d i d not with from sitting to committed a wrongful act. from examination began p o l i c e were that inconsistent suffers stated the stated Russell illness. Hooper and and stand treatment competent August arrested, to 2003, the trial trial with to and antipsychotic stand trial. approximately court that ordered 36 The six an i t was record declared only medicines that after he reflects months after examination of some he was that was Russell's CR-07-1956 competency mental to stand state at continued in continued twice evaluation. court his an of time 2004 in and the for 2005 a examination that forensic pending of R u s s e l l be Mental Health i n h i s own Russell's committed because mental state 2007. Russell Mental stand In be November released Health from he because was and was the forensic i n 2005, the was filed the the case the care unable trial of to the assist Forensic evaluation reports were 2007, The of to with p s y c h i a t r i s t s w i t h the Department of M e n t a l and Russell's evaluation results defense. of offense. F o l l o w i n g a competency h e a r i n g attorney about the May ordered Department trial trial custody R u s s e l l had been court Health during court of the the by 2006 ordered that Department of competent to declared trial. Testimony about R u s s e l l ' s l o n g s t a n d i n g mental i l l n e s s , mental deterioration inability his own experts opinion to the to i n t e r a c t with others residence extensive prior and Russell's R u s s e l l was The longstanding suffering from his from mental or presented two psychosis a apparent employment defense testimony 37 and or to m a i n t a i n consistent. uncontradicted about that was shooting, his unbiased and their disease or CR-07-1956 defect at the time uncontradicted the majority concluded majority the shooting. unrebutted and testimony holds that of that Russell offers only the was the jury sane barest In presented could when spite he rationale at have shot of trial, reasonably Anderson. for the The i t s decision, stating: " [ T ] h e j u r y had ' o b j e c t i v e r e a s o n s ' f o r d i s r e g a r d i n g [the e x p e r t s ' ] testimony. T h e r e was evidence from which the j u r y c o u l d have c o n c l u d e d t h a t Russell a p p r e c i a t e d t h e n a t u r e and q u a l i t y o r w r o n g f u l n e s s o f his actions. As s t a t e d a b o v e , w i t n e s s e s testified concerning R u s s e l l ' s a c t i o n s d u r i n g and a f t e r the m u r d e r a n d h i s a t t e m p t t o h i d e t h e gun he h a d u s e d t o k i l l Anderson." So. 3d at (emphasis The majority presumption of years jury and that deciding insanity may However, a defendant's correctly sanity for Alabama's the mental states every of even right the to that the law creates over person the age courts evidence reject is the jury arbitrarily whether the jury had 38 held expert i s evaluated expert reason to a of 14 that a proof of testimony. testimony unbridled; rejected objective have regarding expert not testimony whether an disagree. uncontradicted condition j u r y ' s r e j e c t i o n of expert I appellate weight reject jury's added). about rather, to a the determine testimony or disregard the CR-07-1956 testimony. 1021 The m a j o r i t y (Ala. Crim. quotes 1998), App. Dunaway v . S t a t e , i n which this c a s e s e s t a b l i s h i n g f a c t o r s an a p p e l l a t e c o u r t when reviewing expert's of a factfinder's Court should to examined consider disregard an o p i n i o n about a defendant's mental c o n d i t i o n i n f a v o r the observations assessing opinion, decision 746 S o . 2 d of laypersons. As t h e m a j o r i t y noted, i n the f a c t f i n d e r ' s decision to disregard the experts' a court on r e v i e w should consider: "(1) the correctness or adequacy of the f a c t u a l a s s u m p t i o n s on w h i c h t h e e x p e r t o p i n i o n i s b a s e d ; "(2) p o s s i b l e b i a s i n t h e e x p e r t s ' defendant's c o n d i t i o n ; a p p r a i s a l of the "(3) i n c o n s i s t e n c i e s i n t h e e x p e r t ' s t e s t i m o n y , m a t e r i a l v a r i a t i o n s between e x p e r t s ; and "(4) t h e r e l e v a n c e testimony." Wallace An factors evaluation of the evidence demonstrates the experts's Pilkinton (11thC i r . in light no o b j e c t i v e r e a s o n 1. The c o r r e c t n e s s assumptions repeated of the contrary l a y v . Kemp, 757 F . 2 d 1 1 0 2 , 1 1 0 9 disregarded Dr. and s t r e n g t h or and examinations testimony adequacy Dr. Hooper 1985). of the of the based foregoing f o r t h e j u r y t o have about R u s s e l l ' s and e v a l u a t i o n s 39 or insanity. experts's their factual opinions of R u s s e l l over a on span CR-07-1956 of many months Secure while Medical Russell Facility, observation by the that the year at Taylor to and the during her unit the opportunity benefit regarding of group the behavior placed and at Hardin more t h a n had she also notes three she had testified had continued in been daily The assigned contact staff of had members behavior, his lack to p a r t i c i p a t e i n Russell's abnormal f o r many m o n t h s a f t e r spite with psychiatrists from patients. that years treatment Russell after testified, that psychiatrists he was included shooting to and after that the she conclusion Taylor that shooting. did convinced Dr. beneficial not about that Dr. believe Russell's seen R u s s e l l sooner a f t e r were 40 admitted i t w o u l d have been however, had was the R u s s e l l immediately m e n t a l c o n d i t i o n e v e n i f she Both constant paranoid w o u l d have r e a c h e d a d i f f e r e n t crime. under his unwillingness other Hardin Pilkinton Dr. reports and acknowledged that to have e v a l u a t e d Pilkinton was Taylor medications. majority Pilkinton and facility, anti-psychotic The anxious with in a h a l f t h a t R u s s e l l had consistent delusions the staff. Hardin, hygiene, activities he to observe R u s s e l l . Russell's poor personal confined where medical and was the Russell CR-07-1956 suffered time from a l o n g - s t a n d i n g of the The mental the that illness experts notes Russell before were psychiatric that there suffered was from the shooting. unable treatment no or documentation was However, to obtain records d i d not a l t e r their treated the fact f o r any their Hardin expert had requested mental-health but opinion. Russell refused had treatment center, had r e c e i v e d not Dr. P i l k i n t o n opinion from been one f a c i l i t y treated the records. there, and that regarding rejection that t h e VA, a n d one o f R u s s e l l ' s p r e v i o u s no r e c o r d s ; to release records testified Taylor a another Taylor had told poisoned that Hardin, jail noted, t h e t r a n s f e r summary i n d i c a t e d t h a t staff members by t h e s t a f f . a l l the he Furthermore, R u s s e l l was m a l i n g e r i n g symptoms; that evidence or that was 41 to believed there was he no however, contrary jail Russell was being testimony he was e x a g g e r a t i n g the that facility t h a t when R u s s e l l was t r a n s f e r r e d f r o m t h e E t o w a h C o u n t y to local employers had i n d i c a t e d Dr. P i l k i n t o n for previous R u s s e l l ' s mental s t a t e and cannot support t h e j u r y ' s of at the shooting. majority indicating and s e v e r e mental i l l n e s s -- his that CR-07-1956 Russell's behavior psychotic disorder. Moreover, of his threat from and actions consistent. through Post i n d i c a t i n g that at Russell t o him because, the FBI indicative only Russell the time believed said, the t e l e v i s i o n at the p o l i c e identical to the e x p l a n a t i o n of events to the p s y c h i a t r i s t s Circuit the United stated of long-term immediately even months States Court i n Wallace the shooting Anderson that was the American s o m e o n e was g o i n g t o k i l l to As a after him. the Russell after of Appeals Legion Russell's shooting was consistently the shooting. f o r the Eleventh v . Kemp: "This i s not a case i n which the p s y c h i a t r i s t s relied only upon the defendant's subjective d e s c r i p t i o n o f h i s s y m p t o m s , s e e , e . g . , Mims [ v . United States], 375 F.2d [135,] 145 [(5th C i r . 19 6 7 ) ] ; U n i t e d S t a t e s v . M a k r i s , 535 F . 2 d 8 9 9 , 908 (5th C i r . 1976), i n w h i c h t h e d o c t o r s were unaware o f t h e d e f e n d a n t ' s l e g a l p r o b l e m s , s e e , e . g . , M i m s , 375 F . 2 d a t 1 4 5 , o r i n w h i c h t h e r e was a l a c k o f a n y h i s t o r y of mental a b n o r m a l i t i e s . I d . See g e n e r a l l y S t r i c k l a n d [ v . F r a n c i s ] , 738 F . 2 d [ 1 5 4 2 , ] 1 5 5 3 [ ( 1 1 t h C i r . 1984)]. " A l t h o u g h t h e s t a t e c o u n t e r e d some o f t h e m i n o r grounds upon which the experts relied, their d i a g n o s e s w e r e n o n e t h e l e s s b a s e d on overwhelming, accurate additional factors. T h e r e was i n s u f f i c i e n t 42 a he h a d r e c e i v e d a m e s s a g e statement gave of the experts t e s t i f i e d that R u s s e l l ' s e x p l a n a t i o n thoughts remained was CR-07-1956 reason, therefore, f o r the jury psychiatrists' testimony." Wallace regarding on w h i c h trial rejected were their spent many of the factual opinions, their i t declared months factor incompetent i n treatment assumptions f a c t o r does disregarded to at t o competency. no b a s i s o n w h i c h t h e j u r y c o u l d this i s t o be inadequate not provide the experts' have or a reason opinion about insanity. bias factor also provides the experts' employed evaluations and to opinions about time the offense. no r e a s o n testimony. by t h e State responsibility of was factual t o have Possible This based he was r e s t o r e d Therefore, Russell's 2. he before the jury adequacy Russell record presents incorrect. for that the experts's or the experts and that Hardin The found correctness significant Taylor the r e l a t i v e to the consideration of the f i r s t the assumptions stand disregard v . Kemp, 757 F . 2 d a t 1 1 1 1 . Finally, highly to was Russell's Dr. P i l k i n t o n of Alabama to complete provide to the competency Neither 43 f o r t h e j u r y t o have at Taylor Hardin, court-ordered court their and mental expert and Dr. Hooper was and forensic objective status employed at the by t h e CR-07-1956 defense. The State case, the record and has made no i m p l i c a t i o n of reflects no bias. 3. Inconsistencies between e x p e r t s The State and Dr. and that mental no expert mental R u s s e l l was not the shooting conflict no and examination of acknowledged paranoid quotes that the Russell was during shooting was However, of the with his the ability his of longstanding shooting, to actions; experts' that during someone s u f f e r i n g delusions. The testimony the of the in psychiatrists and who time portions i n t e n t i o n a l behavior after Pilkinton record and no them. majority and conflict that Russell's actions i n c o n s i s t e n c i e s i n the between The the were c o n s i s t e n t w i t h with Dr. this each t e s t i f i e d c o n s i s t e n t l y character malingering; in or s u f f e r i n g from a at and testimony testimony. interfered nature schizophrenia discloses that disease the after R u s s e l l was disorder; appreciate from experts' Hooper, R u s s e l l ' s e x p e r t s , severe and the presented repeatedly severe in bias which capable t h a t some o f t h e c o u l d be not suffering from a the majority's focus 44 the crossexperts goal-directed or actions R u s s e l l took consistent with mental on of State's disease selected or portions someone defect. of the CR-07-1956 cross-examination prosecutor about of asked whether the by indicated intent certain that a sane p e r s o n or actions shooting, on testing a he although he was was their of like or that years Russell's of responses c e r t a i n of was not mentally believed that disorder mental (R. at fact, health stand a l l sure" released and Dr. Hooper had trial, released that at the did 45 or might time of the observation and was suffered from not when sane testified not would from i n p a t i e n t treatment 434.) that that enough that, so that believe that from Taylor Russell the testified improved he have actions Russell he could a sane p e r s o n , their that been questions repeatedly and w e l l e n o u g h t o be "not to i l l have Although Russell's experience In to actions The questions could guilt. they Anderson. competent the of mental Russell's hypothetical whether their misleading. have been p e r f o r m e d by he Russell, e n o u g h t o be illness. numerous t h e y a l s o c o n s i s t e n t l y and R u s s e l l was he in possible longstanding shot is consciousness could have i n d i c a t e d t h a t based experts acknowledged i t was experts certain actions performed experts the Hardin, ever be for his and well mental CR-07-1956 To t h e e x t e n t t h e m a j o r i t y i m p l i e s t h a t t h e S t a t e ' s c r o s s examination of the interpretations of experts Russell's contradictions in warranting jury's rejection an the implication v. State, testifying time of their testimony is in conflict their opinion, precedent. In 683 (Ala. that Herbert was schizophrenic the symptoms t h e y had observed that a sane p e r s o n gave on and this However, Court after at acknowledged some o f the person know r i g h t c o u l d g i v e some o f t h e in i t s entirety, insane the on the would not from wrong, and same a n s w e r s after Herbert reviewing held: " [ T ] h e r e was a p p a r e n t l y n o t h i n g b e f o r e t h e j u r y t o r e b u t t h e g r e a t mass o f t e s t i m o n y d i r e c t l y s h o w i n g a c t u a l i n s a n i t y b e f o r e , a t t h e t i m e o f , and a f t e r t h e act i n question. In o t h e r words, t h e r e were s i m p l y no facts before the jury from which opposing i n f e r e n c e s might have been r a t i o n a l l y drawn. Here, the evidence of i n s a n i t y i s not merely strongly persuasive; i t i s conclusive. " T h e r e was no e v i d e n c e t h a t t h e a p p e l l a n t s a n e a s i d e f r o m t h e mere p r e s u m p t i o n o f s a n i t y . appellant did not take the witness stand 46 such Herbert 1978 ) , and experts i n Herbert a psychological tests. App. could demonstrate s c h i z o p h r e n i c s can that Crim. defense in insanity, expert 2d offense, resulted Russell's So. that a person record about 357 the insane, of hypothetical behavior w i t h our cross-examination be regarding was The and the CR-07-1956 t h e r e f o r e t h e j u r y was not a f f o r d e d the 'fruitful opportunity' to form an estimate of h i s mental c o n d i t i o n a n d t o v i e w , i n some m e a s u r e a t l e a s t , t h e o p e r a t i o n s and p e r c e p t i o n s of h i s m i n d . " Herbert v. As S t a t e , 357 in or at the 689-90. record here c o n t r a d i c t i o n s i n the Lay Russell's testimony There testimony As the Post socialize motive, had did not others socialize contradicting from only witnesses that Russell and who as of the the expert about Russell's shot testimony does testimony that Russell men at person Anderson the the scene. did not no apparent That Russell Legion Post f o r years well anyone does not with Russell's contradict was the American who with of American or mix establishing two a c a l m l y away f r o m testimony not opinions s h o o t i n g , the m a j o r i t y ' s r e c i t a t i o n indicates a member the expert insanity. testimony walked testimony, contrary testimony described with then been the lay d u r i n g the correctly Legion to no no insanity. about R u s s e l l ' s for actions facts was presented experts' no b a s i s f o r t h e j u r y t o h a v e r e j e c t e d regarding 4. 2d Herbert, inconsistencies and So. or sanity. rebut suffering 47 from amount Moreover, any of the a mental but to that experts' disease or CR-07-1956 defect that at the time of the shooting prevented him from a p p r e c i a t i n g of h i s a c t i o n s . n.11 See B r o c k v . U n i t e d (5th C i r . 1967)("[T]here that nothing a b n o r m a l was assertion of i n s a n i t y . supported by that, of negative at the time t h e window living illness character 387 F . 2 d 2 5 4 , 258 force to a statement to a c l i n i c a l l y observations."). Nor did is based little testimony of h i s a r r e s t , R u s s e l l had j u s t climbed was the planning to testimony. boarded-up house dispose t h e gun in disposing o f t h e g u n was e n t i r e l y Russell and affirmative proposition of the abandoned, i n and States, observed than An the mental the nature i s less conflict of and t h a t The as a s c h i z o p h r e n i c of experts consistent person he h a d b e e n create testified with out a a that diagnosis s u f f e r i n g from paranoid delusions. Because expert does the there testimony not provide jury's jury's testimony no regarding l a y testimony Russell's an o b j e c t i v e reason r e j e c t i o n of the experts' I n summary, the was contradicting insanity, this factor -- o r a n y r e a s o n -- f o r opinion. t h e r e a s o n s o f f e r e d by t h e m a j o r i t y r e j e c t i o n of the overwhelming, of R u s s e l l ' s the to uphold consistent expert i n s a n i t y a r e i n s u b s t a n t i a l b a s e d on a n 48 CR-07-1956 analysis factors jury's of the an entire appellate d e c i s i o n to or i l l n e s s . testimony was conviction bare The could was evidence. based disregarded the conviction based on the expert I r o l e as the on the fair i s not arbitrarily presented clear was and opinions r e l i a n c e on sane. That be and the convincing 49 and reasonable jury arbitrarily opinion and that for justice and two reason the jury's in overwhelming On the for that basis the at to this expert of the jury to experts the an authority and, psychiatric evidence the reversed. respect of the only the disregarded. objective of expert jury's role i s subject uncontradicted no defects overwhelming the i s that administration testimony the by a Russell's o b l i g a t i o n to e x e r c i s e s u p e r v i s o r y that disregard by was rebutted f a c t f i n d e r , the ensure there he utmost reviewing reasons. only that testimony when relevant uncontradicted Therefore, to record, sustained the about mental objective evidence of consider i t s v e r d i c t should have appellate court's case, light opinion any presumption conclusion ensure on have been uncontradicted to based however, Although must in j u r y ' s r e j e c t i o n of the statutory difficult court and r e j e c t expert not presumption, record time who of CR-07-1956 the that shooting Russell suffered he was actions. hold the unable One to function from a s e v e r e m e n t a l d i s e a s e and appreciate the wrongfulness of the c r i m i n a l j u s t i c e system individuals accountable f o r t h e i r criminal system justice i s essential i s not mental illness severe mental comprehension Russell's I must served to protect by f o r actions illness public punishing a that and man resulted over of h i s which actions, safety. he and However, suffering from i s to from a his life-long, had neither nor c o n t r o l . conviction respectfully i s due dissent. Kellum, J . , concurs. 50 t o be reversed. Therefore,

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