author: WISE, Judge.

text:
    Charles WATSON v. STATE of Alabama.
    CR-01-1180.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Rehearing Denied March 7, 2003.
    Certiorari Denied Sept. 19, 2003 Alabama Supreme Court 1021013.

      Wilson Myers, Sr., Gulf Shores, for appellant.
    William H. Pryor, Jr., atty. gen., and Stephanie N. Morman, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Charles Watson, was indicted and charged with one count of the unlawful possession of a controlled substance, cocaine, a violation of § 13A-12-212, Ala.Code 1975 (case no. CC-00-4414). In a subsequent indictment (case no. CC-00-4600), Watson was indicted and charged with murder made capital in the death of Darrell Bentley, because Bentley was killed during the course of first-degree robbery, see § 13A-5-40(a)(2), Ala.Code 1975; alternatively, the indictment charged Watson with the intentional murder of Darrell Bentley, a violation of § 13A-6-2, Ala.Code 1975. The cases were consolidated for trial.

After hearing the evidence, the jury convicted Watson of unlawful possession of cocaine, of capital murder, and of intentional murder. The circuit court then sentenced Watson to 10 years’ imprisonment for the cocaine possession conviction, life imprisonment without the possibility of parole for the capital-murder conviction, and life imprisonment for the murder conviction. All of the sentences were to run consecutively. This appeal followed.

I.

Our review of the record reveals that Watson’s trial was originally set to begin on June 19, 2001. The record indicates that a jury was selected and sworn on that day. However, one of Watson’s appointed attorneys was absent from the courtroom for a portion of June 21, 2001, without notice to or permission from the court regarding his absence. Counsel subsequently returned to the courtroom, with an unsatisfactory explanation for his absence. Moreover, further investigation by the court revealed that Watson’s remaining counsel did not meet the requirement of § 13A-5-54, Ala.Code 1975, for representing an indigent defendant charged with a capital offense, i.e., he had not practiced criminal law for five years. Given these circumstances, the court determined that “manifest necessity” warranted a mistrial. The court entered a detailed written order setting forth its reasons for declaring a mistrial. (C. 140-42.)

The trial court appointed new counsel for Watson, and his trial was reset for January 2002. On December 14, 2001, counsel filed a motion to dismiss, based on double-jeopardy grounds. The motion stated:

“Comes now [Charles Watson] by and through his undersigned counsel, and moves this Honorable Court to dismiss the above cases based on double jeopardy and shows as grounds the following:
“1. That [Watson] wanted the trial to proceed.
“2. That the jury was struck and sworn.
‘Wherefore, premises considered, [Watson] respectfully requests this Honorable Court to dismiss the case at bar.”

(C. 110.)

On January 8, 2002, immediately before jury selection began, the court heard argument on Watson’s motion to dismiss. (R. 14-15.) The gist of defense counsel’s argument was simply a recitation of the grounds stated in Watson’s motion. The court, referencing the reasons contained in its June 21, 2001, order, denied Watson’s motion, and the trial commenced. On January 11, 2002, the jury returned a verdict, finding Watson guilty of possession of cocaine, capital murder, and murder. Following a separate sentence hearing on February 22, 2002, the court sentenced Watson as set out above.

On appeal, Watson argues that the circuit court abused its discretion when it declared a mistrial during his first trial. Specifically, Watson argues that the “reasons set forth by the trial court for declaring the mistrial are skewed, and some are outright false.” (Watson’s brief, p. 8.)

Our review of the record establishes that at no point before his appeal did Watson argue that the reasons in the court’s written order for declaring a mistrial were “skewed” or “outright false.” Thus, this claim is being raised for the first time on appeal, and it is therefore not properly before this Court for review. “The trial court must be apprised of the basis for the objection with sufficient particularity to allow an informed decision to be made on the particular legal issue involved.” Bland v. State, 395 So.2d 164, 168 (Ala.Crim.App.1981). See also Finch v. State, 715 So.2d 906, 911 (Ala.Crim.App.1997). Moreover, “[a]n objection based on a specific ground ‘waives all other grounds not specified, and the trial court will not be put in error for grounds not assigned at trial.’ ” Tuohy v. State, 776 So.2d 896, 901 (Ala.Crim.App.1999) (quoting Glass v. State, 671 So.2d 114, 120 (Ala.Crim.App.1995)). “Review by this court is limited to matters properly raised before the trial court.” Owens v. State, 825 So.2d 861, 863 (Ala.Crim.App.2001). Because Watson did not preserve his challenge to the circuit court’s decision to declare a mistrial in his first trial, no basis for reversal exists with regard to this specific claim of error.

II.

As stated above, Watson was convicted of both capital murder and intentional murder in the death of Darrell Bentley. Although Watson does not present this specific claim on appeal and did not object in the circuit court that he had been subjected to double jeopardy after the jury returned its verdicts and the court entered judgments of conviction on both the capital-murder conviction and the intentional-murder conviction, we are nevertheless obligated to review this issue. Because the double-jeopardy transgression in this case implicates the circuit court’s jurisdiction to render a judgment, we will address this matter. See Rolling v. State, 673 So.2d 812, 816 (Ala.Crim.App.1995) (the circuit court did not have jurisdiction to enter judgments of conviction for both felony murder and reckless manslaughter, arising from death of the same victim, where reckless manslaughter was a lesser-included offense to felony murder). See also Ex parte McKelvey, 630 So.2d 56 (Ala.1992).

Section 13A-1-8(b), Ala.Code 1975, provides, in pertinent part, as follows:

“(b) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
“(1) One offense is included in the other, as defined in Section 13A-1-9.”

Intentional murder, as defined in § 13A-6-2(a)(1), Ala.Code 1975, is a statutory element of the capital offense of murder committed during first-degree robbery, as that offense is defined in § 13A-5 — 40(a)(2), Ala.Code 1975; therefore, the State must prove the element of intentional murder to support a conviction for the capital offense of murder committed during a first-degree robbery. See, e.g., Mangione v. State, 740 So.2d 444, 449 (Ala.Crim.App.1998). Thus, intentional murder is a lesser offense to the offense of murder made capital because it was committed during first-degree robbery. Because the intentional murder of Darrell Bentley as charged in count II of the indictment in case no. CC-00-4600 was an element of the capital offense of murder during the course of a first-degree robbery, as charged in count I of that same indictment, Watson could not be convicted of both counts. As we noted in Borden v. State, 711 So.2d 498, 503 (Ala.Crim.App.1997), aff'd, 711 So.2d 506 (Ala.1998):

“We recognize that the trial court may, and indeed should, properly submit to the jury all counts of an indictment and lesser included offenses reasonably supported by the evidence, notwithstanding the fact that some of the lesser included offenses constitute the ‘same offense’ for double jeopardy purposes. Rolling [v. State], 673 So.2d [812] at 815 n. 1 [ (Ala.Crim.App.1995) ], citing Ball v. United States, 470 U.S. 856, 865, 105 S.Ct. 1668, 1673-74, 84 L.Ed.2d 740 (1985), and King v. State, 574 So.2d 921, 935-36 (Ala.Cr.App.1990) (Bowen, J., concurring specially). See § 13A-1-8(b). However, where, as here, the jury returns guilty verdicts for both a capital offense alleged in one count of the indictment and the lesser included offense of intentional murder ... [as] alleged in another count of the indictment, and the same murder was an element of the capital offense and the intentional murder conviction, the trial court should enter a judgment on only one of the offenses. See Coral [v. State ], 628 So.2d [954] at 958 [ (Ala.Crim.App.1992) ].”

(Footnote omitted.) See also Simmons v. State, 797 So.2d 1134, 1184 (Ala.Crim.App.1999); Ingram v. State, 779 So.2d 1225, 1241 (Ala.Crim.App.1999), aff'd, 779 So.2d 1283 (Ala.2000). Accordingly, this cause is remanded for the circuit court to vacate Watson’s conviction for intentional murder, as charged in count II of the indictment in case no. CC-00-4600. We note, however, that Watson’s conviction for capital murder under count I of the indictment was proper in this regard, “ ‘and thus it stands.’ ” Borden v. State, 711 So.2d at 504 (quoting Coral v. State, 628 So.2d at 958).

Based on the foregoing, Watson’s conviction for possession of cocaine in case no. CC-00-4414 and his conviction for capital murder under count I in case no. CC-00-4600, and the resulting sentences are due to be, and they are hereby, affirmed. However, as discussed in Part II of this opinion, Watson’s conviction for intentional murder as charged in count II of the indictment in case no. CC-00-4600 is reversed, and this cause is remanded to the circuit court with directions to vacate its judgment as to that conviction.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and SHAW, JJ., concur.

      . Watson argues that a portion of the original trial transcript contradicts the court's reasons for declaring a mistrial. Although he attaches pages from that transcript as an appendix to his appellate brief, those pages are not properly before this Court. See Chandler v. State, 677 So.2d 1286, 1287 (Ala.Crim.App.1996) (" '[attachments to briefs are not considered part of the record and therefore cannot be considered on appeal.’ ” (quoting Huff v. State, 596 So.2d 16, 19 (Ala.Crim.App.1991))).

      . We note that had counsel elected to file the motion to dismiss earlier, he could have petitioned this Court for mandamus review of the circuit court’s denial of the motion. See Ex parte Ziglar, 675 So.2d 543 (Ala.Crim.App. 1996) (petition for a writ of mandamus is the appropriate method by which to challenge a pretrial ruling on a motion to dismiss based on double jeopardy).


source: Caselaw Access Project

author: McMILLAN, Presiding Judge. McMILLAN, Presiding Judge.

license: Public Domain

text:
    Samuel Lee GILES III v. STATE.
    CR-01-2067.
    Court of Criminal Appeals of Alabama.
    Jan. 31, 2003.
    Opinion on Return to Remand May 30, 2003.
    Samuel Lee Giles III, pro se.

      William H. Pryor, Jr., atty. gen., and John M. Porter, asst. atty. gen., for appel-lee.
   McMILLAN, Presiding Judge.

The appellant, Samuel Lee Giles III, filed a Rule 32, Ala. R.Crim. P., petition, attacking his guilty-plea convictions for second-degree criminal possession of a forged instrument and second-degree theft of property. He was sentenced to 16 years’ imprisonment for each conviction, the sentences to be served concurrently.

In his petition, Giles raised three issues: (1) that his sentences of 16 years’ imprisonment exceeded the maximum allowed by law; (2) that his guilty pleas were involuntarily entered because, he says, (a) he had agreed to plead guilty in exchange for two 15-year sentences, but instead received two 16-year sentences and (b) he did not know he was pleading guilty to both charges until the guilty-plea proceedings; and (3) that he was denied the effective assistance of counsel because, he says, counsel did not allow him to withdraw his guilty pleas or to appeal the convictions. The State moved to dismiss, and the trial court summarily denied Giles’s petition.

On appeal, Giles argues only that his two 16-year sentences exceed the maximum allowed by law. As support for this claim, he contends that he was not sentenced pursuant to the Habitual Felony Offender Act (“HFOA”). It is unclear from the record whether the HFOA was invoked during Giles’s sentencing proceedings. If his claim that the HFOA was not invoked is true, Giles is entitled to relief, because his 16-year sentences exceed the maximum allowed by law for the offenses of second-degree criminal possession of a forged instrument and second-degree theft of property. See Jones v. State, 724 So.2d 75, 76 (Ala.Crim.App.1998). Therefore, this matter is remanded for the Montgomery Circuit Court to make specific findings of fact regarding this claim and to conduct an evidentiary hearing if necessary.

Because Giles does not argue on appeal the remaining issues presented in his petition, he is deemed to have abandoned those issues. Brownlee v. State, 666 So.2d 91 (Ala.Crim.App.1995). Accordingly, the trial court need not address those issues on remand. Due return shall be made to this Court within 56 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

On Return to Remand

McMILLAN, Presiding Judge.

We remanded this case to the Montgomery Circuit Court for that court to determine whether Samuel Lee Giles Ill’s two 16-year sentences exceed the maximum allowed by law. Giles v. State, 875 So.2d 334 (Ala.Crim.App.2003). Giles had previously been convicted of second-degree criminal possession of a forged instrument and second-degree theft of property. He contended that he was not sentenced pursuant to the Habitual Felony Offender Act (“HFOA”), and, therefore, that his sentences, which were to be served concurrently, were illegal. § 13A-5-6, Ala.Code 1975. As Class C felonies, the maximum sentence for these offenses is 10 years. This Court instructed the circuit court to determine whether the HFOA was invoked during the appellant’s sentencing proceedings. The circuit court has now filed its return; its order states:

“The Honorable Alabama Court of Criminal Appeals having remanded this matter to this Court with instructions that the court make specific written findings regarding whether the Alabama Habitual Felony Offender Act was invoked in this case to warrant the sentence of 16 years on the two Class C felonies.
“Accordingly this court having held an hearing and the District Attorney’s Office being represented and the defendant did appear and after reviewing the record which states that the defendant originally agreed to plead guilty in exchange for two 15-year sentences.
“In conclusion, the court hereby sets aside the two 16-year sentences and sentence the defendant to two 15-year sentences to run concurrently and commence the date of the original sentence.”

Because the circuit court’s order did not address Giles’s claim that he was not sentenced as a habitual offender, Giles has requested that this Court again remand the case to the circuit court for determination of that issue. If Giles’s claim is true, he is entitled to relief, because his 15-year sentences exceed the maximum allowed by law for the offenses of second-degree criminal possession of a forged instrument and second-degree theft. See Jones v. State, 724 So.2d 75, 76 (Ala.Crim.App.1998). Accordingly, this matter is again remanded to the Montgomery Circuit Court for that court to make specific findings of fact regarding this claim and to hold an evidentiary hearing if necessary. Due return shall be made to this Court within 35 days of the date of this opinion.

REMANDED WITH DIRECTIONS.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.


author: PER CURIAM. SHAW, Judge, COBB, Judge,

text:
    Teresa Ann ARCHIE v. STATE of Alabama.
    CR-01-0922.
    Court of Criminal Appeals of Alabama.
    Feb. 28, 2003.
    Rehearing Denied April 18, 2003.
    Certiorari Denied Sept. 19, 2003 Alabama Supreme Court 1021241.

      Frank J. Russo, Birmingham; and Gerald Gregory White, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Marc A. Starrett, asst. atty. gen., for ap-pellee.
   PER CURIAM.

The appellant, Teresa Ann Archie, was convicted of murder, a violation of § 13A-6 — 2(a)(1), Ala.Code 1975. She was sentenced to 20 years’ imprisonment.

A review of the record reveals the following. On December 14, 1996, Archie Mlled her 16-year-old daughter, Shavon, by .shooting her twice in the back with, a handgun. Archie then put the gun down, walked out of her house, and began to walk down the street. A neighbor, Nancy AdMns, testified that she saw Archie walking down the street and stopped to offer her a ride. According to AdMns, Archie said something to the effect that “she had just been saved by the Lord” (R. 68), and then she stuck her head in AdMns’s car window and said “I just shot my daughter.” (R. 69.) Archie then got in AdMns’s car, and she and AdMns drove to AdMns’s house, where AdMns telephoned emergency 911.

The victim was found lying face down outside Archie’s residence, and she was pronounced dead at the scene. Police found the murder weapon inside Archie’s residence. In a statement to the police, Archie said that at various times she had delusions; that she had been depressed but had not taken the medication prescribed by her “mental illness doctor” since March; that she had recently been “saved from sin”; that she believed that her daughter was worshipping Satan; that she believed she was following God’s will so she got her gun and chased her daughter into a bedroom; that her daughter told her that she loved her and begged for her not to shoot her; and that Archie told her daughter that she had to do God’s will and then, as her daughter ran out of the room and out of the house, she shot her twice in the back. Archie also indicated in her statement that she knew what she was doing when she shot her daughter, and that she had asked for forgiveness both before and after shooting her daughter.

I.

First, Archie contends that the trial court erred in not holding a hearing to determine her competency to stand trial. Specifically, she contends that the trial court had reasonable doubt as to her competency because, she says, she “had been committed for more than two years, had previous mental illness and treatment, motions for mental evaluation had been filed, and [she] continued to seek medical treatment and therapy for her mental disease or defect during the course of the criminal proceeding.” (Archie’s brief at p. 1.)

A review of the record reveals that Archie never raised the issue of her competency to stand trial nor did she. ever request a hearing on her competency. However, it is well-settled that “ ‘a trial court has an independent duty to inquire into an accused’s state of mind when there are reasonable grounds to doubt the accused’s competency to stand trial.’ ” Jackson v. State, 791 So.2d 979, 994 (Ala.Crim.App.2000), quoting Ex parte LaFlore, 445 So.2d 932, 934 (Ala.1983).

In January 1997, one month after the murder, the trial court, at the State’s request, ordered Archie to undergo a mental evaluation at Bryce Hospital in Tuscaloosa. At trial, Dr. Joe Dixon testified on Archie’s behalf. He said that he had evaluated Archie in February 1997 and determined that she was not stable enough to return to court, but that he reevaluated her in March 1997, and at that time, determined that she was competent to stand trial. (R. 183.) Although Archie’s trial did not begin until August 13, 2001, over four years after she had been determined competent to stand trial, nothing in the record suggests that her condition had changed in any way in those four years.

In Brown v. State, 557 So.2d 562 (Ala.Crim.App.1989), this Court stated:

“ ‘A second determination of the defendant’s competency to stand trial may be required under the same circumstances as an original determination would be required, that is, where there exist facts which raise a reasonable and bona fide doubt of the defendant’s competency.’ Miles v. State, 408 So.2d 158, 162 (Ala.Cr.App.1981), cert. denied, Ex parte Miles, 408 So.2d 163 (Ala.1982). ‘The defendant bears the burden of persuading the court that a reasonable and bona fide doubt exists as to the defendant’s mental competency.’ Cliff v. State, 518 So.2d 786, 790 (Ala.Cr.App.1987).
“This court has been reluctant to find that trial courts have abused their discretion in failing to order further investigation into a defendant’s competency to stand trial where there has been some previous determination or finding of competency. Cliff, 518 So.2d at 790-91; Blevins v. State, 516 So.2d 914, 915 (Ala.Cr.App.1987); Wisdom v. State, 515 So.2d 730, 733-84 (Ala.Cr.App.1987); Miles, 408 So.2d at 161-62; Wherry v. State, 402 So.2d 1130, 1134 (Ala.Cr.App.1981); Nelson v. State, 405 So.2d 392, 394 (Ala.Cr.App.1980), reversed on other grounds, 405 So.2d 401 (Ala.1981); Holland v. State, 376 So.2d 796, 801-02 (Ala.Cr.App.), cert. denied, Ex parte Holland, 376 So.2d 802 (Ala.1979); Atwell v. State, 354 So.2d 30, 35-36 (Ala.Cr.App.1977), cert. denied, Ex parte Atwell, 354 So.2d 39 (Ala.1978).
“We recognize that ‘a trial court has an independent duty to inquire into an accused’s state of mind when there are reasonable grounds to doubt the accused’s competency to stand trial.’ Ex parte LaFlore, 445 So.2d 932, 934 (Ala.1983). However, under the circumstances of this case, we find that the trial court did not err in denying the defendant’s motion of February 16, 1989, for a competency hearing.”

557 So.2d at 564-65.

After reviewing the record in this case, including the testimony presented at trial regarding Archie’s mental condition, we find nothing that raised a reasonable and bona fide doubt as to Archie’s competency to stand trial. Nothing in the record indicates, and Archie made no showing, that her mental condition changed in any way between the time she was determined to .be competent to stand trial and the time of the trial. Therefore, we find no error on the part of the trial court in not sua sponte conducting a competency hearing.

II.

Next, Archie contends that she was denied a speedy trial because, she says, she was held at Bryce Hospital for over two years after having been found to be competent to stand trial. As the State correctly points out in its brief to this Court, Archie did not raise this issue in the trial court, and, thus, she did not preserve it for our review. “Even constitutional claims may be waived on appeal if not specifically presented to the trial court.” Brown v. State, 705 So.2d 871, 875 (Ala.Crim.App.1997). See, e.g., Page v. State, 622 So.2d 441, 446 (Ala.Crim.App.1993)(de-fendant’s claim that he was denied his right to a speedy trial was procedurally barred where he failed to raise that argument at trial level); Harris v. State, 705 So.2d 542, 549 (Ala.Crim.App.1997)(speedy-trial claim was not preserved for appeal where the defendant did not assert this right and make the trial judge aware of any prejudice he had allegedly suffered).

III.

Finally, Archie contends that the trial court erroneously denied, her motion for a judgment of acquittal because, she says, the evidence was undisputed that at the time of the crime she was suffering from a mental disease or defect, as defined in § 13A-3-1, Ala.Code 1975. She also argues that the verdict was against the weight of the evidence. As she preserved both arguments through timely and proper trial motions, we will address each in turn.

Section 13A-3-1 states, in relevant part:

“(a) It is an affirmative defense to a prosecution for any crime that, at the time of the commission of the acts constituting the offense, the defendant, as a result of severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts. ...
“(c) The defendant has the burden of proving the defense of insanity by clear and convincing evidence.”

(Emphasis added.)

In Ware v. State, 584 So.2d 939 (Ala.Crim.App.1991), this Court noted:

“In 1988, the Alabama legislature replaced our insanity defense statute by enacting the ‘Reasonable Insanity Test Act of 1988,’ 1988 Ala. Acts 1051, No. 88-654, now codified at Ala.Code § 13A-3-1 (Supp.1990). Subsection (a) of that statute provides that:
“ ‘It is an affirmative defense to a prosecution for any crime that, at the time of the commission of the acts constituting the offense, the defendant, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or wrongfulness of his acts. Mental disease or defect does not otherwise constitute a defense.’
“Section 13A-3-1(a) is virtually identical to the federal insanity defense statute, 18 U.S.C. § 17(a) (1988), which ‘was passed in the wake of John Hinckley’s acquittal of charges arising from his actions in shooting President Ronald Reagan and Press Secretary James Brady.’ United States v. Cameron, 907 F.2d 1051, 1061 (11th Cir.1990).
“The new Alabama and federal insanity statutes represent a significant change from the insanity defenses previously available in criminal trials. Formerly, a defendant was not responsible for his criminal acts if ‘at the time of such conduct as a result of mental disease or defect he lack[ed] substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.’ Ala.Code § 13A-3-1(a) (1982 Replacement Vol.); United States v. Freeman, 357 F.2d 606, 622 (2d Cir.1966). It is clear that the new § 13A-3-l(a) is ‘substantially more restrictive’ than its predecessor section. United States v. Brown, 899 F.2d 189, 192 (2d Cir.1990) (comparing 18 U.S.C. § 17(a) to the predecessor defense recognized in federal courts). Where the original § 13A-3-l(a) had both a ‘cognitive’ test (lack of capacity to appreciate the criminality of the conduct) and a ‘volitional’ test (lack of capacity to conform one’s conduct to the requirements of the law), the new § 13A-3-1(a) has only a ‘cognitive’ test (inability to appreciate the nature and quality or wrongfulness of one’s acts). See United States v. Brown, 899 F.2d at 192; United States v. Cameron, 907 F.2d at 1061.
“While the new § 13A-3-1(a) contains only the ‘cognitive’ test, the defendant must make a two-part showing to meet this test. ‘First, he must establish that he suffered from a serious mental disease or defect at the time of the crime. Second, his mental disease or defect must have prevented him from appreciating the nature and quality or wrongfulness of his acts.’ United States v. Knott, 894 F.2d 1119, 1121 (9th Cir.), cert. denied, [498] U.S. [873], 111 S.Ct. 197, 112 L.Ed.2d 158 (1990) (citations omitted) (emphasis added). The defendant must prove both prongs of this test ‘by clear and convincing evidence.’ § 13A-3-l(c) (Supp.1990).
“While new § 13A-3-l(a) contains a much more restrictive definition of insanity than that under which we previously operated, the general principles of law regarding the defense of insanity remain unchanged. Those principles have been summarized as follows:
“ ‘1. By statute, there is a presumption of sanity extending to all persons over the age of 14.
“ ‘2. The defense of insanity is an affirmative defense. The burden of proving this defense rests upon the defendant and never shifts to the state.
“ ‘3. The burden upon the defendant is to establish the issue of legal insanity by [clear and convincing evidence] and to the reasonable satisfaction of the jury.
“ ‘4. The question of insanity at the time of the commission of the crime is a matter to be determined by the jury from a consideration of all the evidence.
“ ‘5. In making its determination, the jury may reject all expert testimony though it is without conflict.
“ ‘6. However, opinion testimony, even of experts, must be weighed by the jury and may not be arbitrarily ignored.
“ ‘The one exception to these rules is found in those cases where the proof of insanity is overwhelming and uncontradicted.
“ ‘ “Cases of insanity may be so clear, the proof so strong and undisputed, that the jury should be instructed in like form.” Boyle v. State, 229 Ala. 212, 222, 154 So. 575, 583 (1934).’
“Herbert v. State, 357 So.2d 683, 688-89 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978). See also Christian v. State, 351 So.2d 623, 624-25 (Ala.1977); Ellis v. State, 570 So.2d 744, 749-753 (Ala.Cr.App.1990).”

584 So.2d at 942-43. See also Williams v. State, 710 So.2d 1276 (Ala.Crim.App.1996) (holding that the 1988 change in the definition of insanity, eliminating the volitional prong from the statute, did not render it constitutionally inadequate).

At trial, Dr. Dixon testified that, when Archie was admitted to Bryce Hospital, she was “floridly psychotic, and [was] stabilized on anti-psychotic medications.” (R. 181.) Dr. Dixon stated that “floridly psychotic” meant “[b]lat’ant psychotic systems, out of touch with reality, hallucinating and delusional belief systems. What you think of when you think of somebody who is severely mentally ill.” (R. 181.) Archie was diagnosed with paranoid schizophrenia. According to Dr. Dixon:

“The preeminent symptoms for paranoid schizophrenia is that while you are basically cognitively intact, you suffer with a major delusional system. A delusional system is a false belief system. It is when you believe something is true, just like if you believed you were in a courtroom right now listening to me talk, you believe that as much as is possible. Mrs. Archie believed that God was talking to her, and that her daughter was inhabited by Satan, and she had a lot of odd and unusual religious overtones to her delusional beliefs.”

(R. 182.) Dr. Dixon testified that he had evaluated Archie to determine her mental state at the time of the shooting, and that she was “suffering with the ill effects of a very severe mental illness.” (R. 188.) He stated that Archie’s “basis in reality, her ability to know right from wrong and to apply common sense and good judgment was severely compromised and impaired.” (R. 194.) However, when asked whether she was capable of intentional behavior, Dr. Dixon stated that “intent is a legal term. I prefer to use goal-directed behavior. She was quite capable of goal-directed behavior, yes.” (R. 204.) Dr. Dixon also testified that Archie “knew that if [sic] shooting someone would kill them, and she knew that shooting and killing someone was a sin and was also a moral wrong and a crime. She was aware of that.” (R. 204.)

In Herbert v. State, 357 So.2d 683 (Ala.Crim.App.1978), the appellant, a member of the Mormon church, shot and killed his wife because he claimed she was possessed and because he believed she was controlling his mind. In Herbert, the trial court “refuse[d] to give the affirmative charge and instruct the jury that the evidence of insanity was so clear and the proof so strong and undisputed that they were bound to accept such testimony of insanity.” Id. at 684. This Court, noting that expert testimony indicated that the appellant was insane, held that there was nothing before the jury to rebut the evidence of insanity. This Court stated that the only evidence indicating that the appellant was sane was the mere presumption of sanity.

Unlike the evidence found to be conclusive in Herbert, here, although it was un-controverted that Archie was suffering from a serious mental illness — paranoid schizophrenia — at the time of the shooting, there was conflicting evidence as to whether she was able to appreciate the nature and quality or wrongfulness of her actions. As is stated above, Dr. Dixon testified that Archie “knew that if [sic] shooting someone would kill them, and she knew that shooting and killing someone was a sin and was also a moral wrong and a crime. She was aware of that.” (R. 204.) Additionally, several excerpts from Archie’s statement to the police are relevant to our resolution of this issue. In Archie’s interview with the police, the following exchange occurred:

“Q: What did you pull your gun out for?
“[Archie]: I had to do the Lord’s Will, I was led to get rid of her.
“Q: I understand that but did the Lord tell you to get rid of her?
“[Archie]: He didn’t, I hud to do his will I had to get rid of Satan cause she was worshipping Satan and she was destroying everybody and my spirit and soul couldn’t be released until I — •
“Q: Are you saying you read a part in the Bible that told you what to do or is that what you’re saying?
“[Archie]: Yes, I kept praying and'asking God, I ask him which way.”

(C. 56.) One inference that can be gleaned from this excerpt is that Archie believed that she was interpreting God’s will when she shot her daughter, rather than following a perceived directive from God to kill her daughter. The following exchange also occurred during Archie’s interview with the police:

“Q: You know what you’ve done, you know that you have shot your daughter?
“[Archie]: Yes I ask for forgiveness before I done it and then I begged and ask for forgiveness after I done it.
“Q: But you just ’ felt like that was something you had to do is that right?
“[Archie]: I feel like I was doing the Lord’s will.
“Q: How do you feel about it now?
“[Archie]: I don’t feel burdened down, I don’t feel real sad, but I keep thinking about it you know, she seemed like an evil person, she talked to me evil, my husband evil, but when she said I love you, it just felt different cause I love don’t hardly come out of her mouth, she just hated.
“Q: But now you feel like everything is okay now, right?
“[Archie]: Yes, I feel that I done what the Lord ask me to do, I feel like my heart is pure now that I done what the Lord.
“Q: Now let me ask you this, you knew and still know, like you said you are not under any kind of drugs or anything like that to alter your thinking whatsoever, so what I’m saying you knew what you were doing is that right, I mean you knew what you were doing?
“[Archie]: Yes, I knew I was doing the will of the Lord.”

(C. 56.) When read in conjunction with the first excerpt noted above, this excerpt, in which Archie states that she asked for forgiveness before and after shooting her daughter, indicates that Archie knew that killing her daughter was wrong and a sin in the eyes of God. Additionally, although we are in no position to engage in a theological analysis of Archie’s apparent religious beliefs, it would appear that the jury could have reasonably questioned whether Archie really believed that God had directed her to commit the act, given the logical assumption that she would not have needed forgiveness, because acting on a directive from God would not constitute a sin or a moral wrong. The jury could have also reasonably questioned whether Archie had asked for forgiveness because she could have been uncertain as to her interpretation of God’s will.

This is a particularly tragic and troubling case. The record indicates that Archie was unquestionably suffering from a severe mental illness when she killed her daughter; the State does not argue otherwise. However, the law in Alabama is clear. Archie had to prove by clear and convincing evidence that she was unable to appreciate the nature and quality or wrongfulness of her acts. Resolution of any conflicts in the evidence is, of course, for the jury. The above-cited excerpts from Archie’s interview with the police, coupled with Dr. Dixon’s statements, provided conflicting evidence as to whether Archie was able to appreciate the nature and quality or wrongfulness of her acts. Therefore, the trial court correctly denied Archie’s motion for a judgment of acquittal and submitted the issue of her sanity to the jury.

As for Archie’s argument that the verdict was contrary to the weight of the evidence, “[a]ny issues regarding the weight and credibility of the evidence are not reviewable on appeal once the state has made a prima facie case.” Jones v. State, 719 So.2d 249, 255 (Ala.Crim.App.1996), aff'd, 719 So.2d 256 (Ala.1998). “ ‘ “[T]he credibility of witnesses and the weight or probative force of testimony is for the jury to judge and determine.” ’ ” Johnson v. State, 555 So.2d 818, 820 (Ala.Crim.App.1989), quoting Harris v. State, 513 So.2d 79, 81 (Ala.Crim.App.1987), quoting in turn Byrd v. State, 24 Ala.App. 451, 136 So. 431 (1931). “We have repeatedly held that it is not the province of this court to reweigh the evidence presented at trial.” Johnson, 555 So.2d at 820. “ When the jury has passed on the credibility of evidence tending to establish the defendant’s guilt, this Court cannot disturb its finding.’ ” Rowell v. State, 647 So.2d 67, 69 (Ala.Crim.App.1994), quoting Collins v. State, 412 So.2d 845, 846 (Ala.Crim.App.1982).

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, J., concur. SHAW, J., concurs specially, with opinion, which WISE, J., joins. COBB, J., dissents, with opinion.

SHAW, Judge,

concurring specially.

I concur in the per curiam opinion.

I write specially to emphasize my concern over the particularly troubling and tragic circumstances surrounding this case — a concern I know is shared by all of the judges on this Court. As the judge who granted oral argument and who subsequently authored the per curiam opinion for this Court, I have been concerned from the outset that Teresa Ann Archie may have been entitled to a judgment of acquittal based on her defense that she suffered from a mental disease or defect. It became apparent to me early on that the undisputed evidence presented at trial indicated that Archie was mentally ill when she shot and killed her daughter (a fact the State concedes) and that by virtue of delusions resulting from that mental illness she was unable to conform her conduct to the requirements of the law. I believe that Judge Cobb correctly concludes in her dissent that Archie “was acting solely within the framework of her deeply disturbed delusional system.” 875 So.2d at 348.

However, I must respectfully disagree with Judge Cobb’s conclusion that “[t]he testimony in this record permits only the conclusion that Teresa Ann Archie was insane before she shot her daughter, she was insane at the time of the shooting, and she was insane after she shot her daughter.” 875 So.2d at 350. I think I could vote to reverse the conviction and render a judgment for Archie if the former Alabama insanity statute was applicable here. However, the original § 13A-3-1(a), which had both a cognitive test (lack of capacity to appreciate the criminality of the conduct) and a volitional test (lack of capacity to conform one’s conduct to the requirements of the law), does not control this case. The new, more restrictive, § 13A-3-1(a), which has only a cognitive test (inability to appreciate the nature and quality or wrongfulness of one’s acts), sets out the standard by which the evidence in this case must be judged. See Ware v. State, 584 So.2d 939 (Ala.Crim.App.1991).

As noted in the per curiam opinion, and chronicled in more detail in the dissent, the record contains undisputed evidence indicating that Archie was not only suffering from a mental illness at the time of the shooting, but also that, based on her distorted sense of reality, she was unable to resist her compulsion to do what she perceived to be God’s will — to kill her daughter. However, there was evidence (Archie’s statements to the police and, more importantly, Dr. Dixon’s testimony) from which the jury could have found that Archie was nonetheless able fo appreciate the nature and quality or wrongfulness of her acts. It appears that the jury did, indeed, find Dr. Dixon’s testimony persuasive and that it did find that Archie was fully aware that shooting her daughter could kill her and that shooting and killing her daughter was both legally and morally wrong. Like Judge Cobb, I must seriously question whether Archie truly comprehended the legal and moral ramifications of killing her daughter; however, I believe that Archie’s statements and Dr. Dixon’s testimony created a conflict in the evidence. Resolution of conflicts in the evidence is for the finder of fact. Based on the law as I understand it today, I can only conclude that the question of Archie’s sanity was for the jury. Therefore, I concur in affirming the trial court’s judgment.

COBB, Judge,

dissenting.

The majority holds that the trial court correctly denied Archie’s motion for a jüdgment of acquittal and rejects her argument that the verdict was contrary to the weight of the evidence. Although acknowledging that “[tjhis is a particularly tragic and troubling case” 875 So.2d at 344, the majority finds that the record provided conflicting evidence regarding whether Archie could appreciate the nature and quality or wrongfulness of her acts, and that the resolution of the conflicts was for the jury to resolve. I agree that this case is particularly troubling and tragic. The picture of a teenaged girl begging for her life as she is chased and shot by her severely mentally ill mother presents facts easily characterized as among the most disturbing I have reviewed in my years as a judge. I find equally disturbing, however, the majority’s resolution of this case, and I must dissent.

Although the majority has quoted relevant portions of the trial testimony and of Archie’s statement to the police, additional portions of the testimony and of Archie’s statement are relevant to my analysis of the case. For example, in the statement she made to the police just hours after the murder, Archie stated that in the weeks preceding the murder she had stopped taking the medication prescribed by her “mental illness doctor,” and that she had again suffered from depression. (Statement at p. 4.) Archie stated that the Spirit of God spoke to her in her mind, and she could ask for things and receive them. (Statement at p. 5.) Archie said that the voice in her head “told me how to do the Will of the Lord” and she said she felt she was led to do his will, which was “to get rid of her.” (Statement at pp. 6, 8, 12.) When the investigator asked Archie whether the Lord told her to “get rid” of her daughter, Archie replied, “He didn’t, I had to do his Will. I had to get rid of Satan cause she was worshipping Satan and she was destroying everybody and my spirit and my soul couldn’t be released until I.” (Statement at p. 8.) After she shot her daughter, Archie said, she ran down the road: “I went to the end of the road to the stop sign, and I just shouted and I said Lord you said your Will had to be done, I done your will Lord.... ” (Statement at p. 12.)

The majority contends that portions of Archie’s statement suggest that she was interpreting God’s will, rather than following a perceived directive from God. 875 So.2d at 343. However, that interpretation cannot stand in light of Archie’s clear and repeated assertions that the Lord was speaking to her regularly and was directing her to “get rid of’ her daughter, who Archie believed was worshipping Satan because she had a book by the author Stephen King.

Other portions of Archie’s statement clearly demonstrate her lack of contact with reality and that she was delusional and experiencing hallucinations. For example:

“Q: What’s wrong with your daughter?
“A: For trying to deny me and keeping everybody in bondage in sin because I feel like last year I had died, I feel it in my head and something and I sort of over heard her saying ‘yea, she died’ and I don’t know if she give me something and I come back to life. She said ‘she come back but I seen the blood,’ I
could just hear her, that’s sounds like what she was saying but I don’t know for sure.
“Q: When was that?
“A: That was last year and I moved on down to my mother’s because the Lord had dealt with me and the police’s and stuff was chasing me and I went to the mental place and then I been down at Regional Hospital and my daughter said on she put down on the report that I had been coloring on it, but I hadn’t been coloring on it I could just hear people talking to me.”

(Statement at p. 6.)

Similarly, the majority acknowledges that Dr. Joe Dixon testified that Archie was “floridly psychotic” when she was admitted to Bryce Hospital and that her ability to know right from wrong was severely compromised. Dr. Dixon’s testimony provided a wealth of information, however, that I believe was not detailed sufficiently in the majority opinion. Therefore, portions of Dr. Dixon’s testimony are set out below.

First, it is significant, in my opinion, that Dr. Dixon was an employee of the State of Alabama, the chief of psychological assessment on the admissions unit at Bryce Hospital, when Archie was admitted to Bryce for ¿valuation. Teresa Archie was admitted to Bryce Hospital in 1996, and she was not discharged until 1999. (R. 201.) Dr. Dixon testified that when Archie was admitted to the facility, she was floridly psychotic; she was “out of touch with reality, hallucinating and [had] delusional belief systems.” (R. 181.) Dr. Dixon testified that years before her admission to Bryce, Archie had been diagnosed with paranoid schizophrenia, and the Bryce treatment team diagnosed her with that disease upon her admission. Dr. Dixon explained that a paranoid schizophrenic is “basically cognitively intact,” but has a false belief system. He explained:

“It is when you believe something is true, just like if you believed you were in a courtroom right now listening to me talk, you believe that as much as is possible. Mrs. Archie believed that God was talking to her, and that her daughter was inhabited by Satan, and she had a lot of odd and unusual religious overtones to her delusional beliefs.”

(R. 182.) Archie was initially too unstable mentally to return to court and had to receive treatment to stabilize her and to render her competent to stand trial.

Dr. Dixon evaluated Archie’s mental state at the time of the offense. He testified from the forensic evaluation report he had prepared:

“Compulsive delusional thinking was apparent in that she believed that she was driven to the ‘work of the Lord.’ She was laboring under a profound defect of rational reason such that she believed that her daughter was possessed by Satan, and that God wanted her to rid her from Satan and all his influences. She related that she tried to fight again this command from God but ivas unable to resist ... Further, these descriptions of her thinking and emotional state during the time in question are consistent with ... clinical impressions and [the] judgment of the treatment staff at Bryce Hospital who diagnosed Mrs. Archie with a major mental disorder which entails loss of contact with reality.”

(R. 186.)(Emphasis added.)

Dr. Dixon explained that he consulted with other clinical professionals who had daily contact with Archie and observed her for more than 60 days while she was at Bryce Hospital following -the murder. Dr. Dixon said that he asked the other professionals if they were certain that Archie was not “faking” her illness because, he said, “mental illness as an explanation for committing a murder is really quite rare.” (R. 189-90.) Dr. Dixon said that neither he nor any of the other mental health professions15 saw any evidence of faking or malingering during Archie’s three years at the hospital. (R. 207.) Dr. Dixon reviewed the case notes completed by the law enforcement officer who investigated the shooting, Archie’s videotaped interview with the police, and the offense report completed during the investigation. Dr. Dixon interviewed the prosecutor; he said that the prosecutor “had indicated to me that the jail staff and [he] had seen odd and unusual behavior in Mrs. Archie, and they had worked with Judge Fielding to get her put into the hospital.” (R. 190.) Archie received anti-psychotic medication while she was at Bryce, and “intensive counseling” from the treatment team. Dr. Dixon testified that “Mrs. Archie’s condition is so chronic that she needs long term [care], and so severe that we believe [at] the hospital — that she would require ongoing medical care for the rest of her life.” (R. 192.)(Emphasis added.) Dr. Dixon testified that, based on his consultation with the entire clinical team, he believed that Archie was severely mentally diseased at the time of the shooting. Dr. Dixon further stated that Archie was a rare example and that he did not report this finding very often in any client. (R. 206.)

In response to the prosecutor’s question regarding whether Archie understood that the “natural consequences” of pointing a gun and firing it at her daughter would be to kill her daughter, Dr. Dixon replied, “Well, actually her intent was to relieve her daughter of the possession of Satan. The natural consequence would be if you shoot someone they will die. Mrs. Archie was focused more on freeing her daughter from the clutches of Satan.” (R. 203.)(Em-phasis added.)

As for Archie’s prognosis, Dr. Dixon stated that paranoid schizophrenics who are properly medicated and treated “have the best likelihood for occupational functioning and for living independently in the community once they have been stabilized and stay on their medications.” (R. 193.) He said that there was a possibility that Archie’s condition would regress if she stopped taking her medication. (R. 193.) Dixon concluded that Archie’s “ability to know right from wrong and to apply common sense and good judgment was severely compromised and impaired.” (R. 194.)

Dr. Dixon testified that nothing in Archie’s records indicated that Archie was told that she could stop taking her medication before the shooting. Rather, he stated that it is not uncommon for paranoid schizophrenics to quit taking their medication because the side effects to the medication can be severe, and because “when you are dealing with people with delusional systems they incorporate events and people into them false belief systems.” (R. 196.) He further explained:

“Remember, they are paranoid, have unrealistic fears and worries, and they are hypervigilant about things; so very often you will find that they will think I am not going to take that medication because the doctor' is now trying to poison me, and they become unmedicated, and their delusion even becomes worse.”

(R. 197.)

Additional testimony about Archie’s condition was presented at trial. Nancy Adkins, the neighbor whom Archie told she killed Shavon, testified that when she first saw Archie that day, Archie was approximately one-half mile from' her house and she was repeatedly stating ■ “the Lord is good.” Adkins said that Archie’s behavior seemed strange, but that what Archie “was saying sort of went along with her body language to me. I could tell that she was excited or agitated.” (R. 76.) After they went to Archie’s house, “Teresa was kind of walking around a ways from us and she seemed to be unaware that Shavon was on the ground.” (R. 72)(emphasis added). She made no attempt to check on Shavon’s condition.

The majority holds that the evidence as to whether Archie could appreciate the nature and quality or wrongfulness of her actions was conflicting. The majority also states that the jury could have reasonably questioned whether Archie believed that God had directed her to act, because she had also asked for God’s forgiveness. The record refutes these assertions. Although the majority correctly notes that Dr. Dixon testified that Archie knew that shooting and killing someone was a sin and a crime, he also testified that Archie’s intent in firing the gun at her daughter was to free her daughter from Satan. He further stated that Archie believed that God wanted her to free her daughter from Satan, and she was unable to resist the perceived command from God. The evidence at trial established only that Archie was suffering from a severe, chronic, debilitating mental illness that required years of hospitalization before Archie was stabilized enough to be returned to court to stand trial. She was acting solely within the framework of her deeply disturbed delusional system. The majority’s speculations about conclusions the jury might have drawn are, I believe, unwarranted in light of all of the evidence — both expert and nonexpert— that was presented at trial. And it clearly ignores the testimony of Dr. Dixon, who stated that Archie’s “intent was to relieve her daughter of the possession of Satan,” and that “Archie was focused more on freeing her daughter from the clutches of Satan.” (R. 203.) The witness who saw Archie immediately after the crime testified about her aberrant behavior, and her behavior continued to be so bizarre that jail personnel and the prosecutor endeavored to secure Archie’s transfer to a psychiatric hospital, where she remained for three years. I find Judge Bowen’s words in a similar case particularly instructive:

“In contrast to the foregoing decisions and others in which we have held that the evidence of the accused’s insanity was not overwhelming and that, in finding the accused sane, the jury did not arbitrarily ignore the expert testimony, we cannot escape the conclusion in this case that the evidence of the appellant’s insanity was both overwhelming and un-contradicted. The verdict of guilt indicates that the jury must have arbitrarily ignored the testimony regarding the appellant’s mental state.
“The expert opinion in this case, as distinguished from that in Ellis [v. State, 570 So.2d 744 (Ala.Crim.App.1990)] and Bui [v. State, 551 So.2d 1094 (Ala.Crim. App.1988), affd, 551 So.2d 1125 (Ala. 1989), vacated on other grounds, 499 U.S. 971, 111 S.Ct. 1613, 113 L.Ed.2d 712 (1991)], was not weak, inconclusive, or methodologically flawed. Dr. Riven-bark’s opinion about the appellant’s mental state was not based primarily on the appellant’s description of her own symptoms, but on psychological tests, a social and family history, ‘a CT scan’ of the appellant’s brain, a drug screen, and voluminous records outlining the nearly identical conclusions of four other mental health professionals that the appellant was psychotic.
“In contrast to Bass [v. State, 585 So.2d 225 (Ala.Crim.App.1991)], Ware [v. State, 584 So.2d 939 (Ala.Crim.App.1991)], Sistrunk [v. State, 455 So.2d 287 (Ala.Crim.App.1984)], Cunningham [v. State, 426 So.2d 484 (Ala.Crim.App.1982)] and other cases in which we determined that the sanity of the accused could be inferred from the circumstances surrounding the offense, the circumstances of the offense alleged here do not imply a sane actor. An inference of sanity could be applied to the defendants in the foregoing cases because they appeared to be prompted by the recognizable motives of revenge, anger, or jealousy. However, it is clear here, as it was in Clark v. State, 475 So.2d 657, 659 (Ala.Crim.App.1985), and Alvis v. State, 434 So.2d 859, 864 (Ala.Crim.App.1983), that the appellant’s actions against Officer Williams were ‘bizarre, unprovoked, and without a rational basis.’
“The appellant’s conduct on the night of August 4, 1991, did not indicate a consciousness of guilt or an attempt to conceal wrongdoing. The State’s argument at trial that the appellant’s sanity was demonstrated by her saying to Officer Williams, ‘I’ve got you now, Bitch,’ R. 109, is not supported by the evidence. While the appellant’s statement was plainly indicative of her intent to assault Officer Williams, it was also clearly consistent with the evidence that the appellant was suffering from a delusion that the assault was necessary to ensure the appellant’s safety.”

Dixon v. State, 668 So.2d 65, 71-72 (Ala.Crim.App.1994).

The Court in Dixon then held:

“We conclude, as we did in Herbert v. State, 357 So.2d 683, 689 (Ala.Cr.App.), cert. denied, 357 So.2d 690 (Ala.1978), that there was
“ ‘nothing before the jury to rebut the great mass of testimony directly showing actual insanity before, at the time of, and after the act in question. In other words, there were simply no facts from which opposing inferences might have been rationally drawn.’
“The appellant was entitled to have a judgment of acquittal entered in her behalf.”

Id. at 72-73.

The record before us requires the same result. Only the single statement from Dr. Dixon regarding Archie’s awareness of the consequences of firing a gun and shooting someone supports the majority’s resolution of this case. And the majority’s reliance on that selected statement, I believe, ignores the wealth of testimony from Dr. Dixon and the other witnesses that established that Archie was psychotic and that she was suffering from a “profound defect of rational reason.” (R. 186.) The testimony in this record permits only the conclusion that Teresa Ann Archie was insane before she shot her daughter, she was insane at the time of the shooting, and she was insane after she shot her daughter. “The evidence supports only one logical conclusion: her actions sprung from an insane mind. Moreover, all intentional murders have planning, whether it be merely picking up a knife or buying a gun.” Janezic v. State, 723 So.2d 696, 724 (Ala.Crim.App.1996)(Patterson, J., dissenting), rev’d, 723 So.2d 725 (Ala.1997). The jury ignored the overwhelming evidence regarding Archie’s mental state that demonstrated that Archie could not appreciate the nature and quality or wrongfulness of her acts. Archie is entitled to a judgment of acquittal.

I find it remarkable and tragic that another statement from Judge Patterson’s eloquent dissent in Janezic is again applicable: “This court has today raised the standard of review in insanity cases to a height that no defendant can possibly reach. The undeniable effect of the majority’s decision is that a jury’s rejection of the insanity defense is no longer reviewable in Alabama.” Janezic v. State, 723 So.2d 696, 725 (Ala.Crim.App.1996)(Patter-son, J., dissenting).

I believe that the record demonstrates overwhelming evidence that Archie’s severe and chronic psychotic state prevented her from appreciating the nature and quality or wrongfulness of her acts, and I further believe that Archie is entitled to a judgment of acquittal. Additionally, I find that this tragic case presents the opportunity to urge the Legislature to consider a means to avoid such an unfortunate, unconscionable situation in future cases. My research and consideration of numerous statutes, cases, and secondary authorities has led me to conclude that a statutory scheme permitting a “guilty but mentally ill” (“GBMI”) verdict should be enacted by this State. Several states have enacted legislation permitting a plea or verdict of guilty but mentally ill when the defendant is determined to be guilty of the offense charged and is mentally ill, though not legally insane. The statutes provide that a defendant who is found guilty but mentally ill may have any sentence imposed that may lawfully be imposed on a defendant convicted of the same offense without a finding of mental illness. The statutes also generally provide, with varying degrees of specificity, that the mentally ill offender shall undergo further evaluation and treatment, including commitment to a mental health facility, as is deemed necessary by mental health workers and corrections officials.

GBMI statutes have withstood challenges on grounds that they violate equal protection, deny due process, and impose cruel and unusual punishment. E.g., State v. Neely, 112 N.M. 702, 819 P.2d 249 (1991); People v. DeWit, 123 Ill.App.3d 723, 79 Ill.Dec. 188, 463 N.E.2d 742 (1984); State v. Baker, 440 N.W.2d 284 (S.D.1989). Support for the underlying purpose for the statute exists. For example, in Sanders v. State, 585 A.2d 117, 126 (Del.1990), the Delaware Supreme Court observed that a defendant who is merely guilty merits punishment; a defendant whose appreciation and understanding of his actions are so overwhelmed by disease that he is declared “not guilty by reason of insanity” needs treatment; and a defendant whose willpower was undermined by his mental disease should receive treatment and punishment — “treatment because he is ill and punishment because he might, in theory at least, have resisted the urge to commit the crime of which he has been convicted.”

Other opinions about the GBMI verdict are far less favorable. The authors of one legal treatise have written:

“It surely makes no sense for commitment procedures to be triggered by a jury verdict based on evidence concerning the defendant’s past rather than present mental condition and need for treatment. Decisions concerning the proper placement of incarcerated offenders should be made by correctional and mental health authorities, not by juries or trial judges.”

1 Wayne R. LaFave & Austin W. Scott, Jr., Substantive Criminal Law § 4.5 (1986). Similarly, a justice of the Illinois Supreme Court expressed his disapproval of the verdict:

“GBMI is a meaningless verdict which dupes the jury into believing that there is a middle ground between guilty and not guilty by reason of insanity. In reality, the GBMI verdict is no different from a guilty verdict. Presenting this option to the jury encourages compromise verdicts and injects irrelevant sentencing considerations into the jury’s determination of defendant’s criminal culpability. Such results are incompatible with due process of law.”

People v. Lantz, 186 Ill.2d 243, 263, 238 Ill.Dec. 592, 602, 712 N.E.2d 314, 324 (1999)(Heiple, J., dissenting).

While I acknowledge that a GBMI verdict is not universally supported by judges and legal scholars, I believe that the Alabama Legislature could, and should, enact a GBMI statute that would protect all of the citizens of the State. That is, I believe a statute can be drafted that would allow a jury to find a defendant guilty, but would also permit the jury to acknowledge that mental illness (which affects thousands of Alabamians) affected the defendant’s behavior when the crime was committed. This legislation must also provide for sentencing and treatment options available to those found GBMI. The statutes enacted by the Delaware legislature, DeLCode Ann. tit. 11, § 408 (2001), and by the Pennsylvania legislature, 18 Pa. Cons.Stat. Ann. § 314 (West 1998), provide detailed provisions for the confinement, treatment, and discharge of those found GBMI, and would be excellent models for the Alabama Legislature to follow. A statute implementing a GBMI verdict would, I believe, provide juries with a necessary option that would benefit the criminal justice system, mentally ill defendants, and the public in general.

In conclusion, the judgment against Archie should be reversed and a judgment of acquittal should be entered because the evidence that Archie was insane when she shot her daughter was overwhelming and conclusive. Furthermore, I encourage the Legislature to enact a statute providing for a guilty but mentally ill verdict, which will address the injustices in the present system, which permits a seriously mentally ill defendant such as Teresa Archie to languish in prison, deprived of the mental health treatment she so desperately needs and deserves.

For the foregoing reasons, I dissent.

      . The victim’s name is variously spelled "Sha-von,” "Shavonne,” and "Sharon” in the trial transcript and clerk's record. For the sake of consistency, we have adopted the court-reporter’s spelling.

      . During Dr. Dixon's testimony at trial, there were repeated references to a report he had compiled for the trial court on March 3, 1997. In addition, in Archie's motion for a court-ordered mental evaluation to determine her mental status at the time of the offense, Archie stated that the report was submitted to the trial court in 1997. (C. 21.) However, the report itself was not made a part of the record on appeal.

      . "[Prosecutor]: Okay. And by the same token as a result of your examination, you have no reason to doubt that at least to some degree and on some level the Defendant could understand and appreciate right from wrong?
      "[Dr. Dixon]: She was in a great deal of anguish and internal anxiety and turmoil. God was telling her in her delusion to kill her daughter, but God also has told her and all of us Thou Shalt Not Kill. So, we are getting conflicting instructions here from God in Teresa's mind. She knew at the time, I believe, that to shoot her daughter, kill her daughter, and that—
      "Court Reporter: I'm sorry? She knew at the time, I believe, that to shoot her daughter, kill her daughter, and that — ■
      "[Dr. Dixon]: Yes. She knew that if shooting someone would kill them, and she knew that shooting and killing someone was a sin and was also a moral wrong and a crime. She was aware of that.”
      (R. 204.)

      . Herbert was decided before the definition of insanity was changed in Alabama.

      . We need not precisely delineate the parameters of the definitions of "nature,” "quality,” "wrongfulness," and "appreciate,” as these words are used in § 13A-3-1, because it is apparent that there was conflicting evidence as to whether Archie was insane regardless of exactly how those words are defined. We note that "nature” is defined in Black’s Law Dictionary 1050 (7th ed.1999) as follows: "A fundamental quality that distinguishes one thing from another; the essence of something.” "Quality” is defined in The American Heritage Dictionary of the English Language (4th ed.2000) as "an inherent or distinguishing characteristic; a property ... Essential Character; nature.” In Ivery v. State, 686 So.2d 495 (Ala.Crim.App.1996), this Court, although noting that the definition of "wrongfulness,” as that term is used in § 13A-3-1, remained an open question in Alabama, nonetheless indicated that "wrongfulness” could be defined as relating to a defendant's appreciation of moral and legal wrongfulness.
      This Court also noted in Ivery, at 502, that the issues of "wrongfulness” of conduct and "appreciation” of conduct are separate and distinct. In Ivory, we cited Brown v. State, 686 So.2d 385, 402 (Ala.Crim.App.1995), in which this Court approved a trial court’s penalty-phase jury instructions, which stated that “ ‘ “[a] person may indeed know that doing the act that constitutes a capital offense is wrong and still not appreciate its wrongfulness because he does not fully comprehend or is not fully sensible to what he is doing or how wrong it is.” ’ ” 686 So.2d at 502.

      . A transcript of Archie’s statement to the police was introduced into evidence as State’s exhibit 37. That transcript is included in the record on appeal, but only the first page of that transcript is enumerated — page 56. The preceding excerpt was from pages 8-9 of Archie’s statement.

      . The preceding excerpt was from pages 13-14 of Archie’s statement.

      . From a legal standpoint, I find this to be a distinction without a difference.

      . Moreover, as Judge Patterson observed in a dissent with which I joined: "If the motive arose at a time when the defendant was severely mentally ill, as in this case, then reasonably the motive evidence can have no probative value as tending to show that the defendant was sane at the time of her act pursuant to that motive (i.e., that she was able to appreciate the wrongfulness of her act).” Janezic v. State, 723 So.2d 696, 722 (Ala.Crim.App.1996)(Patterson, J., dissenting), rev’d, 723 So.2d 725 (Ala.1997).

      . Alaska Stat. § 12.47.030 (Michie 2002); Del.Code Ann. tit. 11, § 408 (2001); Ga.Code Ann. § 17-7-131 (1997); 725 Ill. Comp. Stat. Ann. 5/115-2 (West 2000); Ind.Code Ann. § 35-36-2-3 (Michie 1998); Ky.Rev.Stat. Ann. § 504.120 (Michie 1999); N.M. Stat. Ann. § 31-9-3 (Michie 2000); 18 Pa. Cons. Stat. Ann. § 314 (West 1998); S.C.Code Ann. § 17-24-20 (Law. Co-op.2001 Supp.); S.D. Codified Laws § 23A-7-2 (Michie 1998); Utah Code Ann. § 77-16a~103 (2001 Supp.) (guilty and mentally ill verdict).


author: COBB, Judge.

text:
    McGregory Ladale RILEY v. STATE of Alabama.
    CR-01-1530.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.
    Rehearing Denied May 16, 2003.
    Certiorari Denied Sept. 19, 2003 Alabama Supreme Court 1021406.

      Jeffrey Todd Stearns, Brewton, for appellant.
    William H. Pryor, Jr., atty. gen., and H. Clay Barnett III, asst. atty. gen., for ap-pellee.
   COBB, Judge.

On December 12, 2001, McGregory La-dale Riley was convicted of murder, a violation of § 13A-6-2(a)(l), Ala.Code 1975. On February 12, 2002, the trial court sentenced him to life in prison. On March 4, 2002, Riley filed a motion for a new trial, which was denied by operation of law on April 13, 2002, 60 days after the pronouncement of sentence. See Rule 24.4, Ala. R.Crim. P. This appeal followed.

The evidence adduced at trial revealed the following: On December 30, 2000, Riley and Jomika Williams, his girlfriend, were at her apartment after returning from her sister’s house; they began to argue. Williams asked Riley to leave. Riley agreed to leave the apartment and took some of his clothes to his truck. When Riley reentered the apartment to retrieve another bag, he discovered Williams standing in the den with a knife. In response, Riley went to the kitchen to get a knife. Riley testified that he was afraid of Williams because she had threatened to kill him with a knife on several prior occasions. Williams swung the knife at Riley, who swung his knife at her and stabbed her. Riley dropped his knife on the floor, and he retrieved another one from the kitchen. Riley stabbed Williams in the chest, and she fell to the floor. Riley stabbed her again.

After stabbing Williams, Riley drove to a grocery store and bought a bottle of Tylenol. He returned to the apartment and swallowed 150 Tylenol pills in an apparent suicide attempt. When this suicide attempt failed, Riley again tried to kill himself by consuming antifreeze. This attempt also failed. The next morning when Riley awoke, he telephoned his sister and the police, stating that he had killed Williams. Police arrived at the apartment. They found the victim lying on the floor and Riley sitting on the sofa eating a piece of sausage.

Williams was found dead; a knife blade was protruding from her chest and she had suffered nine stab wounds. Dr. Arthur Wolf testified that three of the stab wounds were serious, and that any one of the three wounds could have caused her death. Four knives were recovered from the scene. Riley advances three arguments on appeal. We address each in turn.

I.

Riley claims that the trial court erred when it denied his Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), motion. Specifically, he argues that the prosecutor improperly struck veniremember no. 4 and that the prosecutor’s stated reasons for doing so were pretextual. Riley argues that “the State offered a highly suspect reason with no underlying race neutral basis.” (Riley’s Brief, 13.)

The record reflects that the prosecution used six of its nine peremptory strikes to exclude nonwhite veniremembers. After Riley’s trial counsel entered a Batson objection alleging that the prosecutor’s strikes were racially motivated, the trial court held that Riley had established a prima facie case of racial discrimination. The trial court then required the prosecutor to state his reasons for the strikes. The prosecutor gave the following reason for striking veniremember no. 4:

“Is a black male who is the approximate age and size and even appearance of the Defendant. He’s employed at Container Corporation. His wife is employed at the Department of Human Resources. When they reviewed our juror list, the Department of Human Resources suggested that we not use Mr. [C.] as a juror in a case that the State of Alabama was prosecuting.”

(R. 92.)

The trial court asked the prosecutor if the contact person at the Department of Human Resources (“DHR”) provided a reason for the suggestion. The prosecutor responded that the person at DHR did not state why he or she believed that the veniremember should not serve as a juror. Riley did not request further information regarding the DHR’s suggestion. The trial court denied the Batson challenge as to veniremember no. 4, but stated that it had strong reservations about whether the State’s reasons for striking the veniremember were sufficient. Riley argues on appeal that the trial court erred by accepting the prosecutor’s reason, which, Riley says, did not have a race-neutral underlying basis.

“The party alleging racially discriminatory use of peremptory challenges bears the burden of establishing a prima facie case of discrimination. Ex parte Branch, 526 So.2d 609, 622 (Ala.1987). Once a prima facie case has been established, a presumption is created that the peremptory challenges were used to discriminate against black jurors. Id. at 623. Where the prosecutor is required to explain his peremptory strikes, he or she must offer ‘ “a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tñed, and ivhich is nondiscñminatory. However, this showing need not rise to the level of a challenge for cause.” ’ McLeod v. State, 581 So.2d 1144, 1155 (Ala.Cr.App.1990), quoting Ex parte Branch, 526 So.2d at 623. (Emphasis in Branch; citation omitted.) Once the responding party has articulated a race-neutral reason or explanation for eliminating the challenged jurors, the moving party can offer evidence showing that the reason or explanation is merely a sham or pretext. Ex parte Branch, 526 So.2d at 624. When the trial court has followed this procedure, its determination will be overturned only if that determination is ‘clearly erroneous.’ Id. at 625.”

Burgess v. State, 811 So.2d 557, 572-73 (Ala.Crim.App.1998), aff'd in pertinent part, rev’d in part on other grounds, 811 So.2d 617 (Ala.2000).

“Within the context of Batson, a ‘race-neutral’ explanation ‘means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991). ‘In evaluating the race-neutrality of an attorney’s explanation, a court must determine whether, assuming the proffered reasons for the peremptory challenges are true, the challenges violate the Equal Protection Clause as a matter of law.’ Id. ‘[Evaluation of the prosecutor’s state of mind based on demeanor and credibility lies “peculiarly within the trial judge’s province.” ’ Hernandez, 500 U.S. at 365, 111 S.Ct. at 1869.”

Allen v. State, 659 So.2d 135, 147 (Ala.Crim.App.1994). However, “the reasons given for striking a juror are not required to rise to the level justifying a challenge for cause.” Pollard v. State, 549 So.2d 593, 596 (Ala.Crim.App.1989), citing Ex parte Lynn, 543 So.2d 709 (Ala.1988).

We acknowledge that “a prosecutor’s exercise of a peremptory challenge of a black venireperson based solely upon the recommendation of a law enforcement officer is highly suspect. However, the underlying basis for the recommendation may supply a racially neutral reason for the exercise of a peremptory challenge.” Robinson v. State, 560 So.2d 1130, 1133 (Ala.Crim.App.1990). This Court has upheld as race-neutral the reasons given by the prosecutor for striking black members of the venire that were based upon information obtained from law-enforcement officers because that information supplied a racially neutral reason for a peremptory challenge. See Sistrunk v. State, 599 So.2d 87 (Ala.Crim.App.1992); McLeod v. State, 581 So.2d 1144 (Ala.Crim.App.1990); and Robinson v. State, 560 So.2d 1130 (Ala.Crim.App.1989).

Although the Department of Human Resources is not a law-enforcement agency, it is an agency that can provide prosecutors valuable information regarding potential jurors, including information regarding owed child support, elder abuse, child abuse, criminal history, and domestic violence. Quite often, the information DHR has will be confidential, thereby preventing full disclosure to the prosecutors and, in turn, to the trial court of the facts underlying DHR’s juror recommendation. The confidentiality of this information will also inhibit the prosecutor’s ability to question the prospective juror on the subject. See, e.g., Ex parte Bird, 594 So.2d 676, 683 (Ala.1991) (“[T]he failure of the State to engage in any meaningful voir dire on a subject of alleged concern is evidence that the explanation is a sham and a pretext for discrimination.”) (citing Ex parte Branch, 526 So.2d 609, 623 (Ala.1987)).

The trial court is in the best position to evaluate the circumstances surrounding a peremptory strike, particularly in light of the fact that it has an insight to the prosecutor’s state of mind based on demeanor and credibility. While it certainly would be preferable if a prosecutor could give at least a general explanation of the information supplied by DHR, sometimes that will be impossible because of the confidential nature of the information. It is preferable in those cases for the prosecutor to know that the information is confidential and to relay that fact to the trial judge, unlike in this case.

Nonetheless, although the prosecutor in this case stated that the information underlying DHR’s recommendation was unknown, rather than that it could not be known because of its confidential nature, we find that the prosecutor’s reasons for striking veniremember no. 4 were facially race-neutral. As the State points out, “ ‘[T]he issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’ ” Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)(quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). The trial court was satisfied that the prosecutor did not possess a discriminatory intent, and nothing in the record indicates otherwise.

Because the prosecutor’s proffered reasons for striking veniremember no. 4 were facially race-neutral, the burden then shifted to Riley to show that the reasons were shams or pretextual. See Cox v. State, 629 So.2d 670 (Ala.1993) (citing Ex parte Branch, 526 So.2d 609 (Ala.1987)). Riley did not offer any evidence indicating that the State’s reasons or explanations were a sham or a pretext.

For the reasons stated above, we hold that there was no Batson violation in this case; therefore, Riley’s argument is without merit.

II.

Riley argues that the trial court erred when it held that he had not established a prima facie case of gender discrimination in the way that the State used its peremptory strikes. At trial, defense counsel made a Batson motion. In addition to the challenge for alleged racial discrimination, defense counsel challenged the State’s strikes on the basis of gender discrimination, noting that the State used six of its nine strikes to remove men from the jury. “Batson was extended by J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), to prohibit gender-based discrimination in jury selection.” Proctor v. City of Prattville, 830 So.2d 38, 43-44 (Ala.Crim.App.2001). The trial court held that Riley had made a prima facie case and required the State to give the reasons for striking the venire-members. After the State provided its reasons for the strikes, the trial court denied Riley’s Batson motion. Thus, Riley’s argument that the trial court erred when it did not require the State to supply gender-neutral explanations for its peremptory strikes is without merit.

III.

Riley contends that the trial court erred when it refused to give requested jury charge number one. Specifically, he claims that he was entitled to charge the jury on his theory of the case and that the requested charge was a correct statement of law and supported by the evidence. Riley’s requested charge stated the following:

“It is the theory of McGregory Riley that he is not guilty of any criminal offense in this case. Mr. Riley asserts that the death of Jomika Williams was a matter of self-defense.
“Mr. Riley has submitted evidence in his defense through his testimony, through the testimony of other witness and through cross-examination of the State’s witnesses that Jomika Williams was a person of violent character, who had previously threatened to kill Mr. Riley and had pulled a knife on him on more than one occasion. It is his theory that during an argument on December 30, 2000, Jomika Williams pulled a knife and tried to stab Mr. Riley. Mr. Riley maintains that he honestly believed that Jomika Williams was about to use deadly physical force upon him and that he had a need to defend himself.
“Mr. Riley does not have the burden of proving that he honestly believed that the death of Jomika Williams was a matter of self-defense. It is the prosecution’s burden- to prove beyond a reasonable doubt that Mr. Riley did not have such an honest belief. If you have a reasonable doubt whether the prosecution met the burden of disproving an honest belief in self-defense, you must resolve that doubt in favor of Mr. Riley and find that he honestly believed that the killing of Jomika Williams was committed in self-defense.
“Mr. Riley does not have the burden of proving that his belief in the need to defend was reasonably held. It is the prosecution’s burden to prove beyond a reasonable doubt that the belief was unreasonably held.
“Under Alabama law, before you could find Mr. Riley guilty of murder or any lesser-included offense in this case, the State must prove to each and every one of you, each and every one of the elements of murder and any lesser-included offense as I have already advised you.
“If each and every one of you is convinced beyond a reasonable doubt of each and all the elements of the crime charged or any lesser-included offense then you should find Mr. Riley guilty of whichever charge you believe has been proven. Such a finding of guilty means also that the State has disproved beyond a reasonable doubt Mr. Riley’s denial of the charge and claim of self-defense. However, if the State has failed to prove to each and every one of you any element of the crime charged or any lesser-included offense(s) or that the State has failed to disprove beyond a reasonable doubt that Mr. Riley acted in self-defense, you should acquit him.”

(C. 66.)(Emphasis added.)

This Court has stated:

“ ' “A trial court has broad discretion in formulating its jury instructions, pro-vid[ed] they are an accurate reflection of the law and facts of the case.” ’ Although it is well settled that ‘[a] defendant is entitled to have the trial court instruct the jury on his theory of defense,’ it is equally well established that ‘[t]he trial judge may refuse to give a requested jury charge when the charge is either fairly and substantially covered by the trial judge’s oral charge or is confusing, misleading, ungrammatical, not predicated on a consideration of the evidence, argumentative, abstract, or a misstatement of the law.’ ”

Reeves v. State, 807 So.2d 18, 41 (Ala.Crim.App.2000) (citations omitted.)

The emphasized portion of Riley’s requested charge gave the jury a summary of evidence in a light favorable to the defense. Under Alabama law, judges cannot comment on the evidence. Cameron v. State, 615 So.2d 121 (Ala.Crim.App.1992). Furthermore, the Alabama Supreme Court has held that a one-sided summary of the evidence by the trial court is a forbidden comment on the evidence. Ex parte Brown, 581 So.2d 436 (Ala.1991). Because it would have been improper to give this charge, the trial court’s decision not to read this charge to the jury was not reversible error.

Additionally, although portions of Riley’s requested charge contained a correct statement of law, the trial judge properly refused the charge because the charge was substantially covered by the trial judge’s oral charge. Therefore, the trial court did not abuse its discretion in refusing the requested jury charge. See Freeman v. State, 722 So.2d 806 (Ala.Crim.App.1998).

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.