Citations:

Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App. 1979). (Direct Appeal)
Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App. 1982). (Direct Appeal After Remand)
Ex parte Whisenhant, 555 So.2d 235 (Ala. 1989). (Direct Appeal After Second Remand)
Whisenhant v. Allen, 556 F.3d 1198 (11th Cir. 2009). (Habeas)

Final/Special Meal:

Chicken leg quarters, french fries, American cheese, orange drink, coffee and chocolate pudding.

Final Words:

Declined.

Alabama Department of Corrections

DOC#: Z355
Inmate: WHISENHANT, THOMAS WARREN
Gender: M
Race: W
DOB: 1/29/1947
Prison Holman
Received:5/31/1978
Charge: AGGRAVATED MURDER
County: Mobile

Thomas Whisenhant executed for 1976 kidnapping, rape and murder

By Brendan Kirby - Al.com

May 27, 2010

ATMORE, Ala. -- Triple murderer Thomas Warren Whisenhant's long stay on Alabama's death row ended peacefully this afternoon, in stark contrast to the horrific violence he inflicted on his victims.

Whisenhant, dressed completely in white, was already strapped to a bed in the execution chamber when Holman prison officials pulled back the green curtains on a pair of adjacent witness rooms at 6 p.m. Warden Tony Patterson read the execution order from the Alabama Supreme Court and asked Whisenhant if he had anything to say. He declined. Then, the three-drug cocktail of lethal drugs began flowing through intravenous tubes from a rectangular slot in the wall. Brian Eskelinen, the chaplain at Fountain Correctional Facility, knelt by Whisenhant and said a prayer while the life slowly slipped from his body.

A witness room containing three reporters, three of Whisenhant's friends, his lawyer and a colleague at the Southern Poverty Law Center, was utterly quiet except for a few muted sobs. Family members of Whisenhant's victims watched from the other room.

Whisenhant fidgeted uncomfortably before closing his eyes and half opening his mouth. After several tense minutes, he chest stopped moving. Corrections officers drew the curtains, and a doctor pronounced him dead at 6:20 p.m.

The 63-year-old Prichard native had been a condemned man for 32 years, 8 months and 20 days, longer than any prisoner has ever spent on death row in Alabama. He became the 241st prisoner executed in the state, and the first since Max Landon Payne was put to death in October.

Before prison officials began administering the drugs, Whisenhant's supporters waved to him. He raised his immobilized left hand as far as it would to and smiled several times. Relatives of his last victim, Cheryl Lynn Payton, interpreted that as hostility. "He had no remorse -- none," said her widower, Douglas Payton. "He died a much easier death than my wife." Added the victim's brother, Edward Gazzier: "There really wasn't justice served today. We watched a him die an easy death."

Attorney Richard Cohen spent 23 years on Whisenhant's case, arguing that his client should not be executed because he was insane. He noted that federal prison doctors, while Whisenhant was imprisoned in the 1960s for attempting to murder a fellow member of the U.S. Air Force, diagnosed him as a psychotic with paranoid schizophrenia. "I know there are a lot of people in Mobile who are jubilant and are saying this is a long time coming," said Cohen, who later read a letter from Whisenhant's sister. "But upon reflection, this is a sad day for the state of Alabama because the state is executing a man who is clearly mentally ill, and it's very, very sad."

Cohen also said that it is not Whisenhant's fault that the appeals took so long. He said the blame for that lies at the feet of Mobile County Preisding Circuit Judge Charles Graddick, who as district attorney and later as attorney general, made improper statements to juries that led to two separate reversals.

Today, according to officials from the state Department of Corrections, Whisenhant spent the day reading the Bible and visiting with friends. That included Bill Hodel, a death penalty opponent who began corresponding with Whisenhant and visited him for nine years before moving from Mobile to St. Louis.

One of the other visitors was Mara Tillman, whose uncle, Larry Tillman, arrested Whisenhant in 1976. Cohen said Tillman wrote to Whisenhant trying to understand his actions and gradually transformed from someone who hated him to someone who regularly visited. Corrections spokesman Brian Corbett said Whisenhant designated her in his will as the recipient of all his belongings and the $96.24 in his inmate account. Cohen said Whisenhant recently was baptized. He expressed concern for his two children and sister, Cohen said. In the visitation room before the execution, Cohen said, the group sang "Amazing Grace."

Corbett said Whisenhant declined breakfast. He requested a last meal of chicken leg quarters, french fries, American cheese, orange drink, coffee and chocolate pudding.

A lifetime ago, Whisenhant was a vicious killer. The crime that led to his execution involved the Oct. 16, 1976, kidnapping, rape and shooting of Payton, a Theodore convenience store clerk and mother to two young sons who was days away from her 24th birthday. Whisenhant returned two days later to the field where he had left Payton to die and mutilated her body, removing a wristwatch that he gave to his wife as a present.

After his arrest, Whisenhant confessed and later pleaded guilty to killing two other women -- Venora Hyatt and Patricia Hitt. In addition to the assault on Air Force member, Whisenhant also confessed to attacking two others, including his own wife.

Mobile's death row inmates. With Thursday's execution of Thomas Warren Whisenhant, Alabama's death row now has 13 inmates who were convicted in Mobile:

•Bobby Tarver -- robbed and murdered cab driver Percy Gibson, Dec. 8, 1981.
•Vernon Madison -- killed Mobile police Cpl. Julius Schulte in 1985.
•Jason Oric Williams -- killed four people during a shooting spree in Irvington, Feb. 15, 1992.
•Jarrod Taylor -- execution-style shooting deaths of Steve Dyas, Sherry and Bruce Gaston at Dyas' car dealership, Dec. 12, 1997.
•Joseph Clifton Smith -- robbed and killed carpenter Durk Van Dam, Nov. 25, 1997.
•George Martin -- killed wife and burned her body inside a car, Oct. 8, 1995. George Martin was a state trooper.
•William John Ziegler -- tortured and murdered 19-year-old Russell Allen Baker Jr. at Ziegler's apartment, February 2000.
•Jeremy Bryan Jones -- raped and killed Lisa Marie Nichols in her Turnerville home, September 2004.
•Thomas Robert Lane -- drowned his mail-order bride from the Philippines, Oct. 12, 2003.
•Garrett Dotch -- ambushed and killed onetime girlfriend Timarla Taldon, outside Subway where she worked, July 10, 2006.
•Donald Dwayne Whatley -- murdered downtown motel owner Pete Patel, December 2003.
•Lam Luong -- dropped his four young children to their deaths from the Dauphin Island bridge, Jan. 7, 2008.
•Thomas Dale Ferguson -- killed a Colbert County man and his 11-year-old son on a fishing trip, July 20, 1997.

A lifetime on death row: Thomas Warren Whisenhant was murderous mama's boy

By Gary McElroy - Al.com

October 06, 2002

Convicted serial killer Thomas Warren Whisenhant weighed less than five pounds in 1947 when he was born into a poor Prichard family. The household was ruled by his domineering mother, Emma. She often physically attacked her weak and alcoholic husband and encouraged her children to do the same.

More than 30 years later, in 1977, Whisenhant's sister, Evelyn Stevens, testified at his capital murder trial. She told jurors that from the day her baby brother came home to their white-framed house on Clark Street, until he was nearly 7 years old, he slept in the same bed with his mother. Until he was 16, Stevens said, Whisenhant shared his mother's bedroom but not her bed. "Tommy resented his mother," psychiatrist William Rudder testified in court. "I think he was afraid of her."

And each of the women who died at Whisenhant's hands was a "mother substitute," according to the testimony of another psychiatrist, Claude Brown. The victims were "direct representatives of his mother, who were annihilated by him in order to maintain his" own existence. After Emma Whisenhant gave birth to Tommy, her fourth and last child, she ended whatever sexual relationship she had with her husband, never again allowing him into her bed. Often drunk on moonshine he bought down the street, Willie Whisenhant would sneak in on his wife and try to seduce her, Stevens testified. The house would erupt, she said, her mother screaming: "'Willie, go back to bed! Leave me alone! I told you to leave me alone!'" Sometimes Emma Whisenhant urged both children to pummel their father with shoes or other objects.

When Willie Whisenhant worked, which wasn't often, his wife would "go through his billfold, and she would find a paycheck and make sure it was the exact amount he gave her," Stevens said. "And if it wasn't, she would fuss on him so, 'You stole it.' And he would tell her that he had to pay so-and-so, like union dues ... My daddy really had to steal his own money to get anything." When sober, Willie Whisenhant was relegated to household chores. Stevens said her father "washed nearly every dish that was washed in the house ... when he wasn't drunk. When he was drinking, he didn't do anything."

There would be tremendous rows between her parents, Stevens said. Her father usually got the worst of it. "I can remember a lot of times when my daddy was all bruised up," she said. "I can remember many times I would tell her, I would say, 'Mama, please just leave him alone. Come on back and leave him alone ... But, you know, she always told us, 'Your daddy keeps you from having anything, because he drinks all the time,' and I was convinced that that was the case, and I always defended her." Emma Whisenhant's wrath apparently was reserved for her husband only. Toward her youngest son, Stevens said, "She was overprotective ... She wouldn't let him really enjoy himself."

Stevens' testimony depicted a relationship between mother and son in which the mother saw to it that her baby boy was never at fault and whose wishes were never denied. His sister said that when Tommy had grown into a teenager and obtained a car, his mother "would go buy gas with him. She just did not let him out of her sight. He got in trouble in Prichard, and after that ... she got worse." Until Tommy was about 12 years old, his sister said, he was a "mild child ... he wasn't mean." But, she said, he then changed into a moody, often violent young man, who sometimes even turned on his mother.

Emma Whisenhant had a withered lower arm from a childhood mishap, Stevens said, and "I have seen him grab her arm ... It was hell every day in our house." Stevens said that one night in 1963, she was making candy when she heard what sounded like the backfire of a car but turned out to be a gunshot. An elderly woman had been killed. Prichard lawmen found the murder weapon in an empty lot next door to the Whisenhant home. Tommy was an instant suspect.

By then, he and Prichard police had a history. They believed he was involved in several purse snatchings and minor assaults on young girls, among other crimes and mischief, but he was never formally charged with those offenses. "They came to the door and asked how long had Tommy been there, and my daddy said that he had been there all night," Stevens said, recalling the Prichard shooting. "I went along with Mama and Daddy that he was there." The officers took Tommy away. Police later reported that the teenager was "exceedingly indifferent" about the death of the 72-year-old woman.

A family minister went to the jail. He later told Stevens her brother was "a very sick young man." Stevens said she returned home and related the minister's words to her mother. "'What do you want me to do?'" she said her mother responded. "'I don't have any money. I don't know what to do.'" And so she did nothing.

A Prichard police captain testified in court years later that his department recommended that Tommy Whisenhant get psychiatric help, but the mother and father "pooh-poohed" the idea. "They didn't think there was anything wrong with their son," the officer said, "So that was that."

Since then, experts have weighed in on Whisenhant's state of mind and whether the acts against his victims signified mental illness. Most agreed that while the attacks were likely related to what was described as Whisenhant's "markedly abnormal" childhood, he was aware of his actions when committing the crimes.

Brown, the Mobile psychiatrist, suggested that Whisenhant - coddled, petted and spoiled throughout his youth - simply never matured into a man. Brown said that in the demands Whisenhant's mother made on him to share her bedroom - with no sexual implications apparent - "One sees there the top of the iceberg. The iceberg being the massive overprotection of this individual, the massive clinging ... mutually ... child to mother, mother to child." His dependency on his mother was engineered by her, Brown said. She was "a tyrant, a despot."

The other side of that dependency is resentment, one expert suggested. Normal children come to know they are no longer fixtures in their mothers' nests. Tommy Whisenhant learned this only minimally, in fragments, with pain, and never completely, they speculated. According to Brown, the emotional and psychological maturity that naturally occurs as children grow was in Whisenhant "squelched" by his mother's "total domination."

Willie Whisenhant, due to his alcoholism, his meekness, his inability to rise above himself or his bullying wife, was "a non-entity. As a functional male-model, he was non-existent," Brown said. Tommy Whisenhant's attitudes toward his father, Brown said, hinged on his perception that whatever was dished out to the old man - "as a kind of degraded object" - was in reality dished out to the son. "And this is what Tommy has forever felt about himself."

On the night he killed his last victim, following a birthday party for his daughter, Whisenhant dropped his mother off at the same Clark Street home where she reared him. Within hours, he had kidnapped, raped and shot a 23-year-old convenience store clerk. The record shows that neither money nor sex appeared to be driving forces behind the slayings. Whisenhant admitted raping only one of the six women he is known to have attacked, the last. And other than a wristwatch he removed from a mutilated body in April 1976 and gave to his wife as a present, he took nothing else from his victims but their lives and some of their body parts.

Revenge and passion also did not play a part, the medical experts suggested. He did not know his victims and, once he had them under his control, he hardly spoke to them at all. One psychiatrist said Whisenhant's acts against two of the women were "done with no words, in silence" on an "infantile, even pre-speech level." After they were dead, he spent hours cutting up their bodies as he idly sat smoking menthol cigarettes and drinking beer, almost certainly in silence.

Once behind bars, Whisenhant's compulsions apparently did not die overnight, if they ever did. One of Whisenhant's jailhouse visitors reported seeing pictures of Playboy models in the inmate's possession. These slick paper images, like two of his victims, had been sliced and disfigured.

Prosecutors have always agreed that Whisenhant's childhood environment could not have been healthy - was abnormal, even - but also argued he was not the first child reared in a dysfunctional family. And Brown fully acknowledged that many healthy, functioning members of society grew up poor, endured alcoholic parents and withstood the often debilitating influences of overprotective mothers. The logical conclusion to such childhood circumstances is not the murder and mutilation of women, prosecutors said.

Brown was once asked during cross-examination: "Would you say in Mobile County a lot of folks or some folks - just for economic reasons - sleep in the same room with their mother from the time that they're small infants until the time that they're teenagers?" "Yes," Brown replied. There is no record of Whisenhant being either sexually or physically abused by either of his parents.

Brown was the one medical expert to declare that Whisenhant suffered from "temporary insanity" when he killed and mutilated. But otherwise, Brown acknowledged, Whisenhant functioned normally. As for getting the answers from Whisenhant himself, no one ever could. He repeatedly told investigators shortly after his arrest for the murder of his last victim that he didn't know why he did what he did. He even asked them why. Psychiatrists who later interviewed him reported he became "annoyed" and clammed up when they broached the killings and mutilations.

Ultimately, experts like Brown and others were never in a position to offer more than speculation on why Whisenhant murdered his victims, much less explain why he mutilated two of them. But six months before Whisenhant was caught, investigators released a psychological profile of their suspect. The killer, according to the profile, was weak, powerless, timid and fearful; a nobody who discovered he could reverse those feelings when controlling someone else. Focusing on the horrific condition of the first mutilated body, the profile predicted the murderer would turn out to be a man who grew up with a weak father and a domineering mother.

Whisenhant's father did not live long enough to hear of his son's criminal acts, at least the final ones. He died while Whisenhant was serving time in a federal prison for the attempted murder of a young U.S. Air Force WAF. At his death, Willie Whisenhant was still married to the woman who for more than 40 years had battered and degraded him.

Emma Whisenhant died in 1984. She lived long enough to see her son reviled by society and condemned to die for his grisly crimes - and to see the bizarre relationship she shared with him exposed to the world. She often visited her son on death row. Until her death, she lived in the same Clark Street home where the killer was born and raised. What she made of Whisenhant's barbaric acts she never publicly revealed.

Inmate executed after 32 years on death row

By Bob Johnson - MontgomeryAdvertiser.com

Associated Press - May 28, 2010

ATMORE -- Alabama's longest-serving death row inmate was executed by lethal injection Thursday for the 1976 kidnapping, rape and murder of a young convenience store clerk, one of three killings that once terrorized the Mobile area. Thomas Whisenhant, 63, died at 6:20 p.m. at Holman prison near Atmore. He did not offer any last words.

But he did appear to pray briefly beside Brian Eskelinen, chaplain at nearby Fountain Correctional Institution. Eskelinen kneeled down beside Whisenhant and said a few words. After that Whisenhant closed his eyes and stopped moving. Whisenhant filed no requests for a stay as the 6 p.m. execution drew near.

Court records show Whisenhant, then 29, confessed to killing Sheryl Lynn Payton and two other convenience store clerks in a similar fashion. He also confessed that he had mutilated the body of Payton and one of the other victims. He avoided execution for more than three decades because of prosecutorial error and successful appeals. Several of Payton's relatives, including her husband, Richard Payton, witnessed the execution.

"Through many trials, retrials, appeals and excuses, our family has endured an enormous heartache and severe suffering," said Susanna Payton, a family member of the victim, in a prepared statement read to reporters after the execution. Family members said watching the quiet, antiseptic execution did not make them feel better. "He showed no remorse. He wouldn't even look at us," said Vivian Gazzier, Sheryl Payton's mother, who held a picture of Sheryl during the news conference. "There comes a time when everybody says it's over, but it's never over," said Ken Curry, son of Venora Hyatt, another of the women that Whisenhant confessed to killing.

Whisenhant's attorney, Richard Cohen, thanked prison officials after the execution for handling the procedure in a humane way. But he said Whisenhant was a "psychotic paranoid schizophrenic." "We should not execute anyone who is seriously mentally ill," Cohen said.

Court records show Whisenhant was arrested after he had returned to a wooded area where he had left Payton's body and was spotted by a farmer. Whisenhant tried to escape the area in his pickup, eventually abandoned his truck and ran into the woods. Whisenhant's wife came to the scene and used a loudspeaker to encourage him to surrender. Upon hearing her voice, Whisenhant yelled, "I've done everything they said I did," court records show.

At the time he was arrested in Mobile, Whisenhant was on parole for an assault on a woman that occurred while he was in the Air Force. Prison officials said he has been on death row for 32 years, 8 months and 26 days, longer than any other condemned inmate in the state. Prisons spokesman Brian Corbett said Cohen was among Whisenhant's visitors Thursday and that the inmate gave a friend, Mara Tillman, his personal possessions, including a 13-inch black and white television, a Bible, a radio, a Timex watch, two packs of cigarettes and a check for $96.94.

Whisenhant declined to eat breakfast Thursday morning, but later in the day requested a final meal of chicken leg quarters, french fries, American cheese, orange drink, coffee and chocolate pudding, Corbett said.

Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App. 1979). (Direct Appeal)

Defendant was convicted in the Circuit Court, Jefferson County, Ferrill D. McRae, J., of capital murder and sentenced to death, and he appealed. The Court of Criminal Appeals, Harris, P. J., held that: (1) evidence presented at sentencing hearing was sufficient to negate presence of mitigating circumstance that offense was committed while defendant was under influence of extreme mental or emotional disturbance; (2) defense motion to allow no death qualifications to be asked of venire was properly denied; (3) statute governing one-for-one strike for jury selection in Jefferson County was not arbitrarily or capriciously applied to defendant whose case was transferred to said county on motion for change of venue; (4) prosecutor's prejudicial and reckless remarks repeatedly interjecting issue of consequences of verdict of not guilty by reason of insanity were highly improper, thus requiring reversal, and (5) there was fatal variance between indictment charging defendant with rape and intentional killing and judgment finding defendant guilty of capital murder. Reversed and remanded. Bookout, J., concurred specially and filed opinion.

* * *

The evidence presented tended to show the following facts:

Tris Lowe testified that he lived on Two Mile Road in Irvington, Alabama, in Mobile County. On October 16, 1976, Lowe and his fiance stopped at the Compact Store on Sweedtown Road, at approximately 8:30 p. m. There he saw Mrs. Payton, whom he identified in the two photographs previously introduced, and bought two cold drinks. Lowe returned to the store at ten o'clock that evening. At that time, no one was in the store and no vehicles were in the parking lot. Lowe saw a coke machine open, with the keys in the lock and a broken “six-pack” of Coca-Colas on the floor, with a mop in a bucket nearby. Lowe then identified four photographs depicting the store, to which defense counsel stated that he had no objection to their being admitted in evidence, and they were admitted. When Lowe found the store empty, he attempted to use the pay phone outside; however, the receiver was “tore up.” Lowe also noticed a Miller “pony” inside the phone booth. Using the telephone in the store, Lowe summoned police and remained at the scene until sheriff's deputies arrived.

Gary Risher testified that he was a resident of Spring Hill in Mobile in October of 1976. On Sunday, October 17, 1976, Risher and his friend, George Pendarvis, were hunting on the land of Ed Trippe in Irvington, Alabama. Risher then identified three photographs depicting the area and defense counsel stated that he had no objection to their being introduced in evidence, and they were admitted.

Approximately 6:00 p. m., Risher and Pendarvis saw a man standing slightly off the roadside, watching them drive towards him. Pendarvis called the man over to the car and asked him what he was doing there; to which the man replied, he was “walking around.” Then, thinking that the man was out “night-hunting,” Pendarvis told him, “Well, we know what you are doing here.” Pendarvis only repeated that statement when the man asked what he meant by that. The man then walked on in the direction of Highway 90.

On the next Monday evening, Risher identified the man in a lineup at the Sheriff's Department. Of the six men in the lineup, Risher identified appellant as the man whom he and Pendarvis had seen on Ed Trippe's land the evening before. Risher also identified appellant in court as the same man. George Pendarvis testified that he was a resident of Irvington, Alabama, in Mobile County. Pendarvis's subsequent testimony paralleled that of Gary Risher.

Charles Edwin Trippe, Sr., testified that he lived in Irvington, Alabama, in Mobile County, where he farmed about five thousand acres of land. On a Sunday evening in October, 1976, Risher and Pendarvis notified Trippe that they had seen someone on his property. Trippe drove down to the plot, where the man had been seen, on Monday, October 18, 1976, and parked his car. When Trippe walked out into the field, he discovered the body of a woman clad only in “knee-high” stockings and a blue denim shirt; there were no cuts on the body. Trippe then reached his house in five minutes and called “the law,” and met investigating officers at the south end of North Gulf Boulevard ten to fifteen minutes later. When Trippe returned to the field with two officers, the body was gone; however, “drag marks” were leading away from the spot. Trippe and the officers followed the marks, discovering the body in a thicket and covered with boards. At this time Trippe observed cuts on the body; Trippe identified two photographs depicting the victim. A carton of Miller beer in “pony” bottles was near the victim's head.

While waiting for the officers at North Gulf Boulevard, Trippe had seen a white pickup truck on the road. Trippe identified a photograph depicting a white pickup as being the same vehicle he saw that day. Defense counsel having stated that he had no objection to the photograph, the picture was admitted in evidence. Trippe described the driver of the truck as having long, curly-like, reddish brown hair, and a “Fu Manchu” moustache. At the trial appellant was clean shaven and his hair was neatly cut.

Trippe further testified that, after the body was found in the thicket, one officer had gone back to the police vehicle to use the radio. At this time Trippe saw the same truck coming back down the road. The vehicle stopped, turned around, and “took off real fast.” One officer remained at the scene with Trippe, while the other undertook pursuit of the speeding vehicle. Trippe identified appellant as the driver of the truck. On cross-examination, defense counsel introduced into evidence two color photographs of the victim.

Richard Lee Bryars testified that he was a Deputy Sheriff in the Mobile County Sheriff's Department. On Monday, October 18, 1976, Bryars was organizing a search party of volunteers when Deputy Tillman received a phone call between 10:30 and 10:45 a. m. Bryars and Tillman then proceeded to North Gulf Boulevard in Irvington, Alabama, where they met Charles Trippe. Bryars and his partner then followed Trippe to a field where they subsequently discovered the body. Bryars observed a pool of blood in the spot where Trippe said he had first seen the body. The body was discovered in Mobile County.

Larry Tillman testified that he was a Detective Sergeant with the Mobile County Sheriff's Office. On the morning of October 18, 1976, Tillman was assisting in the organization of a search party to locate Cheryl Lynn Payton, who was missing. After receiving a call from Chief Investigator Driggers, Tillman and Bryars met Ed Trippe at the south end of North Gulf Boulevard. The three men traveled down the dirt road approximately one half mile where Trippe stopped. Subsequently, the body of Cheryl Payton was located.

Tillman then sent a dispatch to the sheriff's office and while still on the radio saw in his rearview mirror the front end of a pickup truck stopped at the top of a hill a quarter of a mile down the road. When the truck turned around, Tillman pursued it, sending out a dispatch relating his actions. The chase continued at speeds from eighty to one hundred miles per hour until the truck crashed through an electrical fence and wrecked in a clump of woods. The driver of the truck jumped out of the vehicle and ran into the woods. Tillman then identified five photographs of the truck, which were introduced in evidence without objection of defense counsel.

After the truck wrecked, the area was surrounded by twenty police vehicles and Chief Investigator Driggers took charge of the situation. An identification check revealed that the truck was registered to appellant. Tillman sent for appellant's wife, and when she arrived she spoke to appellant, through a public address system in a police car, asking appellant to come out. Appellant shouted, “Baby, I have done everything they said I did.” Tillman, Driggers, and appellant's wife walked into the woods then, finding appellant standing unarmed among the trees. Appellant told Tillman, “You S.O.B.‘s, I am going to make you kill me.” At that time, Tillman walked up to appellant and handcuffed him and appellant was led out of the woods and placed in a police car.

On cross-examination, Tillman testified that he, District Attorney Graddick and a Mr. Baker began interrogating appellant at the sheriff's office approximately an hour after he was apprehended. During the interrogation, appellant also admitted he had killed Venora Hyatt, whom he had also abducted from a small convenience store. Defense counsel then introduced in evidence a photograph of that store in which Mrs. Hyatt had worked. Mrs. Hyatt's body was discovered near the side of an old house covered with kudzu vines at the intersection of Halls Mill Road and Higgins Road. Defense counsel then introduced into evidence several photographs depicting the scene and the body of Mrs. Hyatt. That murder occurred almost six months to the day before Mrs. Payton was killed.

Before interrogating appellant he was given the Miranda rights and warnings and he responded that he understood his rights. Then began a question and answer session that covers more than forty pages in the transcript. Some time later there was another interview with appellant prior to which he was again given the Miranda rights and warnings. This was another question and answer session which covered numerous pages of the transcript. Both of these interviews were introduced into evidence by appellant's counsel and read to the jury.

It will serve no useful purpose to set out in full these two confessory statements. It would serve only to overextend this opinion. The entire episode can best be summed up by quoting from the brief of appellant's counsel:

“On October 16, 1976, the defendant, Thomas Whisenhant, abducted Cheryl Lynn Payton from a Compact Store in Mobile County where she worked as a Clerk. He drove her to a secluded wooded area in rural Mobile County, raped her on the front seat of his pickup truck, and then shot her in the head one time with the 32 pistol he used in the abduction. The murder took place in a field near the truck. He then dragged her body into the wooded area and left the scene.

“On October 17, 1976, he returned to her body, cut off a large section of her breast and slit her abdomen. He was observed near the crime scene and was captured shortly thereafter following a chase.

“Once captured, the defendant freely gave a detailed confession wherein he not only admitted killing and mutilating Mrs. Payton but also killing and mutilating two other women in Mobile County during the previous 18 months. With evidence obtained from the defendant, law enforcement authorities verified the defendant's multiple-mutilation confession. All three, however, involved extensive sadistic mutilation of dead bodies. All three victims were unknown to the defendant.

“At trial, defendant's counsel in opening statement readily admitted that the defendant had committed these three murder-mutilations [FN1] and also told the jury that the defendant, at age thirteen, had killed an elderly woman. He also told the jury that the defendant had been previously tried and convicted of the brutal beating of a woman while he was in the Air Force.”

FN1. The record reveals there was no mutilation on the body of one of the previous victims. He had gone into a compact store, shot and killed a woman clerk, left the store and not returned to the murder scene.

The officers found a knife lying on the seat of appellant's pickup truck and it was determined to be the knife that appellant used to mutilate the body of Mrs. Payton. Also in the truck were a pair of jeans, panties and a minipad.

Louis P. Driggers testified that he was the Chief Investigator for the Criminal Investigation Division of the Mobile County Sheriff's Department. In November of 1975, Driggers had gone to a Compact Store on Cottage Hill and Schillinger's Road in Mobile, Alabama. There he had found the body of Patricia Hitt, who had been shot in the forehead and killed. On October 18, 1976, Driggers proceeded to the scene of the wreck of appellant's truck. Driggers's testimony concerning the apprehension and arrest of appellant is substantially similar to that of Tillman.

Jim Small testified that he was a State Toxicologist and that he had been employed by the State Department of Toxicology for twelve years. Defense counsel stipulated that Small was an expert in his field, and Small's many qualifications which were still established are not set forth herein.

On October 18, 1976, Small went to the scene of the discovery of Cheryl Lynn Payton's body where he conducted an examination. Clutched in Mrs. Payton's hand was some grass similar to that found near bloodstains sixty feet away. Small accounted for this by reason of “cadaveric spasm,” a phenomenon that occurs particularly with head wounds and is commonly seen in cases of suicide by gunshot. The State introduced two photographs depicting that hand of Mrs. Payton clasping grassy material and the hand of Mrs. Wyatt, in which was clutched kudzu vine. Both of these occurrences of “cadaveric spasm” indicated traumatic death.

Upon examination of Cheryl Lynn Payton's body, Small observed a large circular wound over the left breast where the nipple had been removed; a four-inch cut at the base of the left breast; a cut on the right abdomen; a half-inch cut located on the inner margin of the right thigh; a three-eighths inch cut located in the upper pubic region; four cuts inside the external genitalia; two small lacerations on the back of the skull; and a quarter-inch diameter penetrating wound in the top of the head, which Small determined to be an entrance wound from gunshot. Apparently the two small lacerations at the back of the head were caused by the use of some blunt instrument, occurring “before or immediately surrounding the time of being shot.”

Small further testified that he did not find the left nipple at the scene. Additionally, Small took swabs from the victim's vagina, mouth, anus, and stains noted on the leg and chest area. Florence's tests resulted in positive results of seminal stains on swabs taken from the vagina. The spermatazoa were immobile, indicating that they had been deposited for at least ten hours. In Small's opinion, Mrs. Payton had been penetrated. Small also determined the presence of blood in the crotch area of the jeans and panties, and on the sanitary napkin, all of which were found in appellant's truck.

Small further testified that he was present at the Mobile Infirmary where Dr. Bryan Montgomery performed an autopsy upon Mrs. Payton's body. A bullet which was recovered from the brain was determined through ballistics tests to have been fired from a .32 pistol, Smith & Wesson. The bullet, without objection by defense counsel to its admission, was received in evidence. Defense counsel further stipulated that Mrs. Payton's death was caused by the pistol and caused by appellant. The knife found in appellant's truck had no blood or tissue on it. No fingerprints could be raised from the beer carton found near Mrs. Payton's head.

Douglas Payton testified that he lived in Theodore, Alabama, and that his wife was Cheryl Lynn Payton, who was twenty-four years old at the time of her death. On October 20, 1976, Payton last saw his wife alive when he dropped her off at work at the store at approximately ten minutes before 3 o'clock in the afternoon. On that day Mrs. Payton was in her menstrual period and was wearing a sanitary napkin of the type admitted in evidence. Prior to dropping his wife off at the Compact Store on October 16, 1976, Mr. Payton last had intercourse with his wife two days before. Payton then identified a photograph as depicting his wife. The State rested at this point.

Evelyn Stevens, appellant's sister, was called as the first defense witness. Mrs. Stevens testified that appellant had lived in Theodore, Alabama, but had moved to Irvington after he married. There were two older brothers in the Whisenhant family; appellant was the youngest child. Appellant and his family were born and reared in Prichard, Alabama, where their mother still occupied the same house. When their father was alive, he was an electrician and worked at various shipyards in Mobile.

When appellant was born he was very small. His mother kept him in her bedroom, where he slept with her until he was six years old. Appellant continued to sleep in his mother's bedroom, until he was sixteen, in a separate bed. Appellant's father shared a room with his daughter, Evelyn, (now Mrs. Stevens) where they had separate beds. After appellant was born, she would hear her father go into her mother's room at night. Then she would hear her mother “holler, and she would say, ‘Willie, go back to bed. Leave me alone. I told you to leave me alone.’ ” All money earned by the Whisenhant family was turned over to the mother. Mr. and Mrs. Whisenhant often fought and when this occurred, Mrs. Whisenhant encouraged appellant and his sister to hit their father. Their mother convinced appellant and his sister that their father kept them from “having anything because he drinks all the time.”

Mrs. Stevens further testified that appellant had convulsions one night when he was a baby. The family thought appellant had died, but he later revived. About the time appellant began school, his mother was working at Kress's; after school appellant was kept by his grandmother, whom Mrs. Stevens described as a domineering woman who would stand appellant in a corner and whip him for no reason.

In high school appellant never “dated,” except once, when he attended the senior prom. Appellant's mother kept any money that appellant earned and would not let him out of her sight. After appellant got a driver's license, his mother would go buy gas with him. Generally, as a child, appellant had a mild disposition, often just sitting and staring. As he grew older, however, appellant could become violent when his requests were not granted. Mrs. Stevens saw appellant grab their mother by the arm several times. Appellant also began to get in trouble, being suspected of killing a woman, ravishing a girl, and purse snatching.

Robert Norman, the minister at the church which the Whisenhants attended, told the family that the appellant was in need of psychiatric help. However, one of the appellant's older brothers angrily claimed that the police were “trying to blame something on an innocent boy.”

On October 16, 1976, appellant's little girl was a year old and he called Mrs. Stevens to invite her to a birthday party. At the party appellant appeared to be the “happiest (Mrs. Stevens) had ever seen him in a long time.”

James H. Bryant testified that he was a retired captain of the Prichard Police Department. While he was a detective on the force, Bryant knew the Whisenhants, particularly appellant, well. Bryant first encountered appellant over a purse snatching charge. Subsequently, Bryant picked appellant up on a murder charge. An elderly lady, seventy years old, who lived on the same street as did appellant, was shot and killed early one evening. Earlier a pistol had been stolen from a house down the street where appellant had been spending some time with teen-aged friends. Bloodhounds led Bryant to the Whisenhant home; however, appellant's family claimed that he had been home all evening. Bryant came to regard appellant as a “weirdo,” and it “passed through (his) mind” that appellant had something against women. Bryant told Mrs. Whisenhant and Evelyn Stevens that appellant needed psychiatric help and “they had better get him straightened up.” Appellant's family responded by getting angry and saying appellant was not crazy.

At a much later time, appellant's wife came to Bryant and told him that appellant had told her he wanted to play a game with her to prove he could outsmart police. Then appellant placed a stocking around her neck and choked her till she blacked out, after he had persuaded her to write and sign a suicide note. Bryant told appellant he had “better straighten up.”

On cross-examination, Bryant testified that before the elderly woman was killed appellant and his friends had been playing with the pistol which had been stolen prior thereto. Appellant had taken a bullet from the revolver, marked an “X” on it, and said, “This bullet is going to kill somebody.”

Claude Brown testified that he was a psychiatrist who had practiced in Mobile County for twenty-six years. Brown graduated from Tulane Medical School in 1945 and spent three years specializing in psychiatry at the Menninger Foundation in Topeka, Kansas. Concurrently, Brown was an associate professor at the University of South Alabama Medical School in the Psychiatry Department. Brown further testified to membership in numerous professional organizations and that he was certified by the American Speciality Board of Psychiatry and Neurology. Brown's articles on psychiatry have appeared in approximately one dozen professional journals. Additionally, Brown listed many other duties and activities he had undertaken in the field of psychiatry which are too numerous to list here.

Brown became involved in appellant's case when appellant was ordered to Searcy Hospital for psychiatric examination and evaluation. Brown and two other psychiatrists, Kimbrough and Rudder, were appointed by Dr. J. E. Condom, the Superintendent of Searcy Hospital, to form a lunacy commission to thoroughly evaluate appellant.

On three occasions, Brown interviewed appellant at Searcy. Additionally, Brown reviewed available records concerning appellant, which included police statements, photographs relating to the murders, military service records, records of imprisonment, and social service reports of interviews with the Whisenhant family by social workers. These records were supplemented by psychology reports, further social work data, and reports of day-to-day contact with appellant from on-ward aides. In total, Brown spent thirty hours, approximately, evaluating appellant. Four of those hours were spent in actual interviews with appellant. Subsequent to appellant's leaving Searcy Hospital, Brown saw him again for one hour at the Mobile County Jail.

In summary, Brown testified that appellant was aware of the murders that he had committed and that they occurred when appellant was not under the influence of any drugs or in an impaired state of consciousness. However, appellant had no idea why he was doing such things. Appellant consistently expressed anxiety about his family and a desire to see his wife and child.

Appellant was reared in a home that was a “markedly abnormal one.” His home was one in which women “ran the show,” particularly his mother, who was the dominant figure in the Whisenhant family. Appellant's father was a “non-entity”, denigrated, “cast down and cast out, literally as well as figuratively.” Brown viewed the father as a non-existent functional male model. Appellant viewed himself as receiving the same treatment as did his father, that is, the subject of contempt, denigration, and being a nonentity. As appellant grew up, he was by all accounts a shy, relatively reserved person, who had few friends; he had no girl friends. Appellant “remained extensively dominated by Mother,” and was “early in trouble.”

Brown described the purse-snatching episodes as more than simple robbery, being “aggressive ripping away something valuable of a woman's.” Brown considered this an ominous symptom and then recounted appellant's unprovoked assault upon a WAF when appellant was in the Air Force. For this appellant remained in a penitentiary for seven years, where on one occasion he threatened a female teacher in one of the prison's scholastic programs.

At one point, appellant related to Brown that when he was approximately twelve years old he was assaulted by two older girls. These girls threatened to castrate appellant if he did not have intercourse with them. While Brown did not consider this incident to be the definitive source of appellant's problem, he did think that appellant's relation of the story “adds to and conforms to him his picture of the world.”

Appellant also told Brown that he had not had sexual relations prior to his marriage and that his sexual relations with his wife were good. However, appellant's wife had become fearful of him following the episode with the suicide note and strangulation. Shortly before the birth of his first child, appellant purchased a pistol, fearing that his wife might be assaulted while he was away at work. Following the birth of the child, appellant became preoccupied, complaining of “very vague physical pains,” and saying that his “head didn't feel like it was there at times.” Appellant also had little interest in sexual relations with his wife and their relationship “became more aloof.”

Brown considered the timing of the murders of the three women to be in specific reference to appellant's wife's giving birth to the first child. The first murder occurred approximately six weeks after the birth of the child; the second in the same month that his wife told him she was pregnant again; and the third on the night of his first child's first birthday.

Further, Brown emphasized the repetitive patterns of attacks of increasing violence against women since appellant was fourteen years of age. Appellant's development as a child was abnormal, rooted in a miserable relationship with his mother. Brown considered that each murdered woman represented to appellant a direct, unconscious substitute for his mother. The lack of a proper male model in the Whisenhant family prevented appellant from growing away from the dependence fixation upon his mother. Appellant became a person intensely fearful of the world at large. The purpose of the murders, Brown concluded, was to prevent what appellant perceived to be his own destruction, a fear of which was kindled by his own wife's pregnancy and childbirth.

Brown further explained the purpose for the mutilation of the bodies of the last two victims, saying that the answer lay at several levels. The amputation of the breasts, the cutting of the vagina, and slitting of the stomach amounted to removal of gender identification; that is, appellant made his victims “not female anymore.” On another level the mutilations represented an infantile, regressive desire to be a part of the female body again.

As to a diagnosis of appellant's “disease,” Brown classified appellant as a “severe schizoid personality with marked paranoid traits, with the traits of necrosadism; that is, the sadistic destructive act with bodies that are dead.” In Brown's opinion, appellant was afflicted with a mental disease. Appellant knew right from wrong; however, when he killed Cheryl Lynn Payton, he had so lost the power to select right from wrong, because of duress of that mental disease, that his ability to prevent himself from killing her was destroyed.

On cross-examination, Brown testified that he knew of no treatment program with any reasonable expectation of helping appellant. If appellant had not been apprehended after Mrs. Payton was killed, Brown testified, it was probable that he would have become more violent and committed more murders in a shorter period of time.

Dr. Brown's testimony concluded the case for the defense, and the defense rested. The State then proceeded to produce evidence in rebuttal.

Danny Wren testified that he was employed as a shipfitter at Ingall's Shipbuilding in Pascagoula, Mississippi. Appellant worked in Wren's crew at the yard over a two-year period. When appellant was arrested, Wren believed appellant incapable of such acts, appellant having appeared normal to him. In Wren's opinion, appellant was not insane. Wren's testimony was followed by that of four other of appellant's co-workers. Each had never observed appellant act abnormally and thought he was sane.

Mary Fern Reymundo testified that she and her husband lived in Irvington, Alabama, where they knew appellant and his wife and had visited in their home. Mrs. Reymundo considered the Whisenhants to be a very happy couple and never knew appellant to act abnormally. James Reymundo, who also testified, shared his wife's opinion.

Kathleen Brannan testified that she and her husband were appellant's and his wife's closest friends, often visiting each other on social occasions. Mrs. Brannon thought that the Whisenhants's marriage was a good one, though appellant and his wife argued a little. Appellant never appeared to be insane, deranged, or high tempered to Mrs. Brannan. On October 16, 1976, Mr. and Mrs. Brannan attended appellant's daughter's birthday party where appellant appeared to be as he usually was.

Jack Brannan, Kathleen's husband, who also testified, shared his wife's opinion of appellant. Brannan further identified a .32 caliber pistol as a weapon that he had sold to appellant before his first child was born. Brannan also identified the knife in evidence as being of the kind that appellant carried.

Preston Arthur testified that he had been a United States Probation and Parole Officer for two years, assigned to the Mobile Division. Appellant's was one of the cases Arthur was assigned to supervise, and appellant reported to Arthur monthly. In Arthur's opinion, appellant was no different from any other twenty-nine year old criminal.

Henry Frank Skinner testified that he worked as a general practitioner of medicine at Searcy Hospital. Skinner ran a physical examination of appellant on the day after his admission to Searcy and found no physical problems. In his opinion appellant was sane.

Elvin Harper testified that he worked as an aide at Searcy Hospital and that he had had opportunities on a daily basis to observe appellant and carry on conversations with him. Harper considered appellant to be a sane man.

W. D. Little testified that he was a security officer at Searcy Hospital where he had observed appellant on a daily basis. Appellant appeared sane to Little.

James Edward Kimbrough testified that he was a psychiatrist and Assistant Superintendent at Searcy Hospital. Kimbrough finished medical school at the University of Alabama in 1952 and interned at the University Hospital in Birmingham, Alabama. Afterwards, Kimbrough engaged in general practice for seventeen years until he was trained in psychiatry at University Hospital, beginning in 1971. Kimbrough then taught at the University of Alabama in Tuscaloosa in the College of Community Health Sciences to residents in Family Practice.

Kimbrough saw appellant for approximately five hours on four or five separate occasions. Additionally, Kimbrough reviewed appellant's case history ten to twelve hours. Kimbrough, agreeing with Rudder and Brown, diagnosed appellant as a schizoid personality with paranoid, necrosadistic features and episodic discontrol.

In discussing the appellant's development, Kimbrough would not forward any thesis as to the nature of the purse-snatching incidents, saying that he did not have sufficient information to make such a judgment. Kimbrough did testify that a chaotic childhood, coupled with fear and some helplessness on the part of the purse-snatching victim, would make appellant aware of needs which had gone unmet, that is, need of an outlet of hostilities and seeing someone controlled. Appellant did not remember these episodes when interviewed by Kimbrough.

Kimbrough would not comment on Brown's psychiatric theory of appellant's case. However, Kimbrough agreed that in a person of abnormal personality development the circumstances of appellant's wife's pregnancy would be the addition of another stressful situation, from a standpoint of physical and financial needs.

Kimbrough further testified that appellant did not have a diseased brain. Nor was appellant a schizophrenic, though he exhibited characteristics of a schizoid personality.

Further, Kimbrough did not know whether appellant knew right from wrong at the time he murdered Cheryl Lynn Payton. However, in Kimbrough's opinion, appellant possessed the type of external control which would cause appellant to run away from a situation in which he could be “caught.”

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Whisenhant v. State, 482 So.2d 1225 (Ala.Cr.App. 1982). (Direct Appeal After Remand)

After remand, 370 So.2d 1080, defendant was convicted before the Circuit Court, Mobile County, Ferrill D. McRae, J., of capital felony of rape when victim was intentionally killed, and he appealed. The Court of Criminal Appeals, Tyson, J., held that: (1) trial judge did not err in denying defendant's motion for funds to employ two named independent psychiatrists of defendant's own choice; (2) trial court properly excused questioned jurors from jury venire based upon their expressed opposition to imposition of capital punishment; (3) trial judge did not abuse his discretion in refusing to require sequestration of those jurors who were opposed to death penalty for purpose of allowing defendant's attorney to have opportunity to interview them out of presence of other jurors; (4) no error occurred when trial court allowed four prospective jurors who knew or were told that defendant had been previously convicted of offense for which he was then being retried to serve as trial jurors; (5) trial court did not err in refusing to charge jury, at penalty phase of trial, that proof beyond reasonable doubt that aggravating circumstances outweighed mitigating circumstances must exist before death penalty may be imposed; but (6) prejudicial remarks by prosecutor during penalty phase of trial required reversal of sentence received during penalty phase, but not of conviction. Guilt phase affirmed, penalty phase reversed and remanded with directions for new sentencing hearing. Affirmed in part and remanded in part, Ala., 482 So.2d 1241,on remand, Ala.Cr.App., 482 So.2d 1246, judgment reversed, Ala., 482 So.2d 1247,on remand, Ala.Cr.App., 482 So.2d 1249.

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In the prosecutor's opening statement at the penalty phase of the trial, the following factual assertions were made:

“They have used some year of 1965 when all of his troubles began. I wrote down-I quoted them, wrote it down on a legal pad. ‘This is when all of his troubles began.’ All of his troubles did not begin in 1965. He robbed a blind black lady in Prichard, Alabama and was able to ‘beat’ that charge on a technicality. He purse snatched and I think a police lieutenant will tell you about a situation with regards to another homicide in Prichard, Alabama. So, if three murders and beating someone close to death is not bad enough, we can see where he started when he was a very young man and has just been a career criminal, dangerous, violent person all of his life.” (R. 654)

No evidence concerning a blind black lady nor a purse snatching, nor another homicide was ever introduced at any phase of appellant's trial. The prosecutor apparently made these references in anticipation of the defense introducing such evidence to demonstrate appellant's insanity, just as the defense had done at appellant's first trial. No such evidence was introduced by appellant at the second trial. Neither did the trial court instruct the jury to disregard these remarks as having created error. As this court has previously stated: “It has been specifically held that remarks by the prosecutor which accuse the defendant of the commission of a crime other than that for which he is on trial and which are unsupported by any evidence in the case, require reversal.

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Ex parte Whisenhant, 555 So.2d 235 (Ala. 1989). (Direct Appeal After Second Remand)

After remand, 370 So.2d 1080, defendant was convicted of capital murder in the Circuit Court, Mobile County, No. CC-77-697, Ferrill D. McRae, J., and sentenced to death, and he appealed. The Court of Criminal Appeals, 482 So.2d 1225, affirmed conviction but reversed the death sentence and ordered new sentencing hearing. Cross petitions for certiorari were granted. The Supreme Court, 482 So.2d 1241, affirmed in part and remanded with directions. On remand, the Court of Appeals, 482 So.2d 1246, affirmed sentence. Certiorari was granted. The Supreme Court, 482 So.2d 1247, reversed and remanded with directions. Following remand by the Court of Criminal Appeals, 482 So.2d 1249, defendant received another sentencing trial, and trial court accepted jury's recommendation and sentenced defendant to death by electrocution. The Court of Criminal Appeals, 555 So.2d 219, affirmed, and defendant petitioned for certiorari. The Supreme Court, Kennedy, J., held that: (1) judge who presided over first two sentencing trials was not required to recuse himself from presiding over third sentencing trial; (2) change of venue was not required by pretrial publicity; (3) venire member was properly disqualified because of hesitancy to impose the death penalty; and (4) hearsay testimony by victim's mother as to victim's fear because of murders of other convenience store clerks was admissible as declarations of the emotion of fear. Affirmed.

KENNEDY, Justice.

Thomas Warren Whisenhant was first convicted and sentenced to death in 1977 for the rape and murder of Cheryl Lynn Payton, which occurred in Mobile County. The facts of the murder are set out in Whisenhant v. State, 370 So.2d 1080 (Ala.Cr.App.1979), and the statement of facts in that opinion is adopted by this Court as if fully set out herein.

Whisenhant's first trial was conducted in Jefferson County, after a motion for change of venue was granted by the trial judge. The Court of Criminal Appeals reversed the conviction because of improper argument by the prosecutor. In 1981, Whisenhant was retried, this time in Mobile County, and was again convicted and sentenced to death. The Court of Criminal Appeals affirmed his conviction, but reversed his sentence because the prosecutor, in his opening statement at the sentencing phase, accused Whisenhant of having committed other crimes, evidence of which had not been introduced during trial. This Court then granted cross-petitions for certiorari and remanded to the Court of Criminal Appeals for a determination of whether the prosecutor's remarks were harmless error. The Court of Criminal Appeals ruled that the remarks were harmless error and thereby affirmed the sentence. On return from remand, this Court held that the error caused by the prosecutor's remarks was not harmless and remanded the case to the Court of Criminal Appeals with instructions that the case be remanded to the trial court for a new sentencing trial. After remand by the Court of Criminal Appeals, Whisenhant received another sentencing trial, and the jury recommended that he be given the death penalty. The trial court accepted the jury's recommendation and sentenced Whisenhant for the third time to death by electrocution. The Court of Criminal Appeals affirmed the sentence and we, by this opinion, affirm the judgment of the Court of Criminal Appeals.

Whisenhant raises the following issues:

(1) Was the trial judge's refusal to recuse himself a violation of the defendant's constitutional rights?

(2) Did the trial court commit reversible error by refusing to change the venue of the trial from Mobile County?

(3) Did Attorney General Siegelman violate the constitutional rights of the defendant when he called a press conference to discuss the case 15 days before trial?

(4) Was the trial court in error when it disqualified a veniremember because of her hesitancy to impose the death penalty?

(5) Did the prosecutor commit reversible error when he referred to the appeals process in closing argument?

(6) Did the trial court improperly refuse to give the defendant's requested jury instructions on nonstatutory mitigating circumstances?

(7) Did the admission of testimony of the victim's mother violate the defendant's constitutional rights?

I. MOTION TO RECUSE

Circuit Judge Ferrill McRae presided over the first and second sentencing trials and, in each case, accepted the jury's recommendation that Whisenhant be sentenced to death. Judge McRae also presided over the third sentencing trial.

Prior to the third sentencing trial, Judge McRae responded as follows to a motion in limine by the defendant regarding the admissibility of certain evidence offered by the state: “THE COURT: Yeah, you know, Mr. Dees, you and I both have tried this case a number of times. I think it would be putting a stranglehold on the State that I shouldn't do and I think it even goes back to your insanity question. The victim in this case, as I recall the evidence, was abducted with Entebbe precision and he certainly has to-you know, which an irrational person I do not believe could have formed. But he is-he's in the position-you're asking me to put the State in the position of not telling the jury the entire story. So, I can't do that. So, I deny that motion.”

Based on these remarks, the defendant immediately made a motion for recusal, arguing that the judge had a fixed opinion regarding the mitigating circumstance of a capital offense “committed while the defendant was under the influence of extreme mental or emotional disturbance,” Code 1975, § 13A-5-51(2), or a capital offense committed when the defendant could not “appreciate the criminality of his conduct” or “conform his conduct to the requirements of the law,” Code 1975, § 13A-5-51(6).

The statements by the trial judge did not provide grounds for recusal. Rather, they occurred in response to a motion by the defendant to prohibit the family of Cheryl Lynn Payton from testifying. His comments were a reflection of his knowledge of the case and reflected no personal enmity. To disqualify a judge for bias, the bias must be shown to be personal. Ex parte Large, 501 So.2d 1208, 1210-11 (Ala.1986). A search of the record reveals no personal bias on the part of the trial judge towards the defendant.

In addition, the fact that the trial judge had presided over the defendant's previous two sentencing trials was not grounds for disqualification. A trial judge need not recuse himself solely on the ground that he was the “same trial judge who had heard the case and imposed the death penalty” in a defendant's prior trial. Ex parte Whisenhant, 482 So.2d 1241, 1245 (Ala.1983).

II. CHANGE OF VENUE

The defendant argues that the trial judge committed reversible error by refusing to change the venue of the trial; that for the same reasons the original trial was moved to Jefferson County from Mobile County, this trial should also have been moved; and that a high percentage of those living in Mobile County were predisposed to favoring the death penalty because of unfavorable publicity in the Mobile area regarding this case.

Code 1975, § 15-2-20(a), states the following: “(a) Any person charged with an indictable offense may have his trial removed to another county, on making application to the court, setting forth specifically the reasons why he cannot have a fair and impartial trial in the county in which the indictment is found. The application must be sworn to by him and must be made as early as practicable before the trial, or it may be made after conviction upon a new trial being granted.”

To ensure that the defendant has a fair and impartial jury, it is not necessary that the veniremembers be totally ignorant of the facts surrounding the case. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2035, 44 L.Ed.2d 589 (1975). “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.” Irvin v. Dowd, 366 U.S. 717, 724, 81 S.Ct. 1639, 1643, 6 L.Ed.2d 751 (1961).

In 1977, the publicity surrounding the the murder of Cheryl Lynn Payton and the ensuing trial of Thomas Whisenhant was very intense. However, 10 years had passed from the time of the murder to the third sentencing trial. This 10-year period is significant, because it allowed the details of the case to fade from the minds of potential jurors. “That time soothes and erases is a perfectly natural phenomenon to all.” Patton v. Yount, 467 U.S. 1025, 1033, 104 S.Ct. 2885, 2889, 81 L.Ed.2d 847 (1984). From the record, it is obvious that the passage of 10 years had dulled the memories of most of the veniremembers. The record reveals that although many jurors had a rudimentary knowledge of Whisenhant and what he had done, very few remembered whether he had received a sentence of life imprisonment or of death. Those who did remember the sentence were properly excused by the trial court.

III. STATEMENTS OF THE ATTORNEY GENERAL

Fifteen days before this third sentencing trial, Attorney General Don Siegelman called a press conference in Mobile. The press conference received extensive media coverage and was preceded by the issuance of a press release, which was circulated to the Mobile news media. At the press conference, Siegelman announced that an attorney from his office (Tom Sorrells) was joining the Mobile district attorney to “make this retrial the last one for Thomas Whisenhant.” Siegelman said that he had instructed the state's attorneys to seek the death penalty because “there are some crimes that are so outrageous and offend the moral standards of society to such an extent that capital punishment is an appropriate penalty. This is clearly such a case.”

The trial court, through careful questioning, was able to determine that all but one veniremember could not remember the attorney general's statements. The one veniremember who did remember them was excused by the trial judge. Therefore, we find that the attorney general's press conference did not deprive the defendant of his due process rights.

IV. QUESTIONING OF PROSPECTIVE JURORS

At the sentencing trial, the court allowed the defendant to question prospective jurors individually about what they knew about the specific facts of the defendant's previous trials. The defendant admits that individual voir dire was allowed, but contends that the court was unduly restrictive in not allowing him to question prospective jurors about the effect of pre-trial publicity on their ability to sentence the defendant in an impartial manner.

The jurors were also interviewed in panels of 12; during that process the defendant was restricted from asking questions about pre-trial publicity in front of these 12-member panels. This was done to ensure that these panels would not be tainted by the statement(s) of a single juror.

To those who had heard of the case from the media, Judge McRae then stated the following: “Has any member of this jury seen anything about this case on television, read anything about this case in the newspaper or seen or heard anything about this case on television and, if so, please stand. All right. “.... “Is there any member of this jury who thinks because of the recollection that you have about this case, whether it be from the radio, television or newspaper, that it would be impossible for you to sit as a fair and impartial juror in this penalty stage of this particular case? That is, what you have read, what you have seen or seen and heard on television, would that in any way bias or affect you in any way from rendering a fair and impartial verdict in this case? If you feel that it would, simply raise your hand.”

Having reviewed the record, we agree with the Court of Criminal Appeals “that the trial court asked all the questions necessary to insure that the jurors would give this appellant a fair and impartial trial.” Those jurors who felt that they could not listen impartially, those who knew of Attorney General Siegelman's press conference, and those who knew that the defendant had received the death penalty in a prior trial were excused from the venire. Therefore, we agree with the Court of Criminal Appeals that the defendant had a fair and impartial jury and that the trial court was correct in refusing to change the venue of the trial.

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VI. PROSECUTOR'S CLOSING ARGUMENT

The defendant argues that the prosecutor, in his closing argument, “improperly minimized the jury's sense of responsibility for determining the appropriateness of a death sentence” by arguing the following:

“They told you he helped law enforcement and you saw the F.B.I. agent on there, a Mr. Boyle. What did he actually tell you? He actually told you that he gets-all this about this center starting because of Tommy Whisenhant. He actually told you he got a letter from up there at F.B.I. headquarters, find us somebody, and what was the criteria? The criteria is he's got four murders and his appeals are exhausted. Well, his appeals aren't exhausted. He talks to Mr. Dees and he talks to Tommy Whisenhant. Mr. Dees said, Whisenhant made the decision, made it himself, but he did make the decision, and he says he couldn't have anything to gain. He didn't have anything to gain? He's in this courtroom right now trying to get you to consider that, and he was aware this hearing was coming up. That means Tommy Whisenhant himself knows he had something to gain and he had something to gain by doing it and he, with good common sense, decided to do it. Now, Mr. Boyle told you after they filled out that questionnaire they sent it off and he's never heard from it again. He didn't tell you this big foundation was started because of that. He didn't tell you some center was started because of that, but he did tell you something that was significant as to why Tom Whisenhant would appear and answer that questionnaire and also give a deposition in court in that civil case. He enjoyed the attention. He hadn't talked to anybody for a while. He liked folks making a fuss over him.”

The State contends that it was not attempting to minimize the jury's role in the capital sentencing process, but was responding to the following arguments by the defendant that the jury should find Whisenhant's participation in an F.B.I. study of multiple murderers to be a mitigating circumstance:

“Secondly, we're talking about the fact that Thomas Whisenhant has done something since he's been in prison that you can consider as a valid mitigating circumstance, that he has made an effort to help law enforcement when he dealt with the F.B.I., and you heard the F.B.I.'s testimony. “.... “Now, let's talk about Tommy Whisenhant helping law enforcement. You heard an F.B.I. agent say, first of all, that he is not an expert and he couldn't tell you whether Tommy was sane or insane. He said, I'm not a psychiatrist. He said, he acted like a rational man when I was talking to him. Well, nobody doubts that. That's a red herring, if you believe him acting like a rational man makes a difference.

“Tommy gave evidence in 1982, six hours of interview to the National Center for Violent Crime, and you heard the F.B.I. agent tell you how that was important. You know what, you know how Tommy Whisenhant was caught? Think about how important it was. Tommy was caught because he went back to the scene. Now, let's just suppose his report was in the evidence that he gave, and let's say the Mobile Police Department came upon a mutilated body like this, they fed it into that computer real quick and tied it in to the National Center for the Prevention of Violent Crimes and they popped it back and they said there's some things you need to think about. They'll tell a few and one of them was, he'll probably return to the scene, because they would have put that he cut on the body while it was dead. Do you know what, the first murder, Mrs. Hyatt, Mrs. Payton may still be. All they'd had to have done was stake out the scene. That's what-that's what the purpose of that program is, to find what these people do and then that's why it's valuable.

“Now, Tommy-are you going to penalize Tommy Whisenhant now because he participated in a program and say, well, that's self-serving. He just did that to help himself. You didn't hear the F.B.I. agent say that and Tommy didn't have to do that. He participated in that and hopefully it will mean something and hopefully they will come-they will be able to come back and get some information from Tommy later, because you heard the F.B.I. agent say that the study wasn't complete, and I asked him the question on that tape. I said, Doctor-I mean I said, Agent Boyle, now, suppose you find out some information from one guy and find out some from another and you need to go re-interview somebody. He said, it's possible.

“And Dr. Brown and Dr. Kimbrough said we need more information from Tommy Whisenhant. I'll tell you, if he's alive ten years from now, other Paytons may be saved, because you can see how that the Mobile Police Department found a dead body that had been cut on and the F.B.I., the first thing that center would tell them, stake out the scene. Mr. Whisenhant would be long [sic]-we wouldn't have this trial and Mrs. Payton would be alive.”

It is clear that the State was responding to the defendant's participation in the F.B.I. survey rather than attempting to minimize the jury's sense of responsibility. “A criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial.” United States v. Young, 470 U.S. 1, 10, 105 S.Ct. 1038, 1043, 84 L.Ed.2d 1 (1985).

As the Court of Criminal Appeals pointed out, “the prosecutor was attempting to point out that this appellant did not fit the proper criteria for the F.B.I. study and, thus, his cooperation was self-serving in that it may be considered a nonstatutory mitigating circumstance on appeal.” Whisenhant v. State, 555 So.2d 219 (Ala.Crim.App.1988). We agree with the Court of Criminal Appeals' finding that the prosecutor's arguments were not improper.

VII. REQUESTED JURY INSTRUCTION # 10

At the sentencing trial, the defendant requested that the court give his proposed jury instruction # 10, listing the nonstatutory mitigating circumstances that he felt were supported by the evidence at trial: “-First, that [petitioner] had psychological and emotional problems when he committed the capital offense; “-Second, that [petitioner's] early family history contributed to his conduct; “-Third, that [petitioner] has made efforts to assist law enforcement; “-Fourth, that [petitioner] has made efforts to help the victim's family; and “-Fifth, that [petitioner] has made a good adjustment to life in prison.”

The trial judge gave the following instructions to the jury regarding nonstatutory mitigating circumstances:

“In addition to the mitigating circumstances I have just read to you, you may also consider as a mitigating circumstance the circumstances of the capital offense which tend to indicate that the Defendant should not be sentenced to death. This includes, but is not intended [sic] to, anything that happened to the Defendant before he committed the capital offense that indicates or tends to indicate that he should not be sentenced to death. Mitigating circumstances also include, but are not limited to, any conduct or behavior of the Defendant since the time of the capital offense which indicates or tends to indicate that he should not be sentenced to death. Mitigating circumstances also include, but are not limited to, any aspect of the Defendant's mental or emotional condition at the time of the crime which indicates or tends to indicate that the Defendant should be sentenced to life imprisonment without parole instead of death. A mitigating circumstance does not have to be included in the list which I have read to you in order for it to be considered by you.... “The law of this State recognizes that it is possible, in at least some situations, for a large number of aggravating circumstances to be outweighed by one or a few mitigating circumstances. In other words, the law contemplates that different circumstances may be given different weights or values in determining what sentence is to be given to a particular circumstance in light of all the other circumstances in this case. You must do that in the process of weighing the aggravating circumstance or circumstances against the mitigating circumstance or circumstances in order to determine the proper sentence.”

The Eleventh United States Circuit Court of Appeals requires that the trial judge do the following when instructing the jury on mitigating circumstances in a death penalty case: “(1) instruct the jury that it must consider mitigating evidence, (2) define mitigating factors and explain their function in sentencing deliberations, and (3) inform the jurors that a finding of aggravating circumstances does not require them to return a death sentence.” Tucker v. Zant, 724 F.2d 882, 891 (11th Cir.1984).

The trial court's instructions satisfied the requirements of Tucker. Therefore, we find that the trial court did not commit error by denying the defendant's requested jury instruction # 10.

VIII. TESTIMONY BY THE VICTIM'S MOTHER

At the sentencing trial, the judge allowed the victim's mother, Vivian Gazzier, to testify regarding the fear her daughter had felt because of two other convenience store murders in the Mobile area during the two years preceding her daughter's murder. Mrs. Grazzier testified that her daughter had turned in her resignation on the day she was murdered because of the fear she felt. The defendant argues that the trial court committed error in admitting Gazzier's testimony because, he argues, the testimony was not relevant to any aggravating circumstances proffered by the State and was inadmissible hearsay. The trial court admitted the mother's testimony, based on the following reasoning:

“The Section 13-11-6(8) aggravating circumstance does exist. The Defendant did not suddenly kill Cheryl Lynn Payton without her having an opportunity to suffer the anticipation of her death at the hands of a murderer. Instead, the Defendant abducted her; he drove her to an isolated spot; because it was raining, he raped her in the cab of his pickup truck so he would not get wet; he marched the terrified victim out of the truck; and he shot her to death. Cheryl Lynn Payton knew that two other female convenience store clerks in Mobile had been murdered in the preceding year. She knew that the more recent victim had been abducted and that after she had been killed, her body had been mutilated. Cheryl Lynn Payton was afraid that she, too, would be abducted and murdered. As she was being abducted, as she was being taken to an isolated spot, as she was being raped, and as she was taken from the Defendant's truck, Cheryl Lynn Payton was terrified. She had reason to know that she was going to die long before the Defendant actually killed her. Considering all the circumstances, this capital offense was especially heinous, atrocious and cruel. The heinousness, atrociousness, and cruelty in this capital offense exceeded by far that which is present in every capital offense.”

In order for a trial court to find that a murder was heinous, atrocious, and cruel, the crime must be of such a nature that it is “conscienceless or pitiless” and “unnecessarily torturous to the victim.” Ex parte Kyzer, 399 So.2d 330, 334 (Ala.1981).

The defendant argues that this case is analogous to that of Booth v. Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440 (1987), and that the judgment must, therefore, be reversed. We disagree. In Booth, an elderly Baltimore, Maryland, couple were brutally stabbed to death by the defendant Booth and an accomplice. Before the sentencing phase of the trial, the State Division of Parole and Probation interviewed the victims' son, daughter, son-in-law, and granddaughter. These interviews were then compiled into a “Victim Impact Statement” (V.I.S.) The V.I.S. included very emotional statements by those interviewed and spoke of the many fine qualities of the deceased. The Division of Parole and Probation official who interviewed the survivors concluded the report by writing: “It became increasingly apparent to the writer as she talked to the family members that the murder of Mr. and Mrs. Bronstein is still such a shocking, painful, and devastating memory to them that it permeates every aspect of their daily lives. It is doubtful that they will ever be able to fully recover from this tragedy and not be haunted by the memory of the brutal manner in which their loved ones were murdered and taken from them.” Id., 482 U.S. at 498-99, 107 S.Ct. at 2531-32.

The prosecutor in Booth, over defense counsel objections, read the V.I.S. to the jury. The jury sentenced Booth to die for one of the murders and to life imprisonment for the other murder. The United States Supreme Court overturned the capital conviction, holding that the introduction of the V.I.S. violated the Eighth Amendment. Id., 482 U.S. at 504, 107 S.Ct. at 2536.

The facts of this case differ markedly from those in Booth. Here, the testimony that the trial court relied on dealt not with the suffering Mrs. Gazzier had experienced since the murder, but rather the fear that Cheryl Lynn Payton experienced leading up to her murder. Unlike the jury in Booth, the trial court in this case relied on the emotions that Cheryl Lynn Payton felt, not the emotions felt by her survivors. In Booth, the Supreme Court overturned the conviction because the defendant had no control over the emotions that the surviving relatives felt. Here, the defendant surely was aware that, because of the recent crimes he had committed, a female convenience store clerk like Cheryl Lynn Payton would be afraid of being abducted, raped, and murdered. We adopt, by reference, the language of the trial judge regarding this aggravating circumstance, and we conclude that his finding was proper.

In addition, the statements made by the victim's mother, although hearsay, were admissible because they were declarations of the emotion of fear. C. Gamble, McElroy's Alabama Evidence, 262.01(11) (3d ed.1977). The trial court, therefore, was correct in admitting the testimony of Mrs. Gazzier.

VIII. CONCLUSION

This Court, having searched the record, finds no plain error or defect that adversely affected any of Whisenhant's substantial rights. The record reveals no evidence that the sentence of death resulted from or “was imposed under the influence of passion, prejudice, or any other arbitrary factor.” Code 1975, § 13A-5-53(b)(1).

In addition, the sentence in this case is not disproportionate to the sentence imposed in similar capital punishment cases. Bradley v. State, 494 So.2d 750 (Ala.Cr.App.1985), affirmed, 494 So.2d 772 (Ala.1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987) (rape/murder); Dunkins v. State, 437 So.2d 1349 (Ala.Cr.App.), affirmed, 437 So.2d 1356 (Ala.1983), cert. denied, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984) (rape/intentional killing).

The trial court found that the following four aggravating circumstances existed (pursuant to Code 1975, §§ 13-11-6): “The Section 13-11-6(1) aggravating circumstance does exist. When the defendant committed the capital offense of raping and murdering Cheryl Lynn Payton on October 16, 1976, he was still under a twenty-year federal sentence of imprisonment he had received on March 14, 1966, for assault with intent to murder. He had been paroled on November 28, 1973, but for purposes of the Section 13-11-6(1) aggravating circumstance he was still, quote, under sentence of imprisonment, close quotes. “The section 13-11-6(2) aggravating circumstance also exists. The Defendant was previously convicted of three crimes which involve violence to the person, and any one of them is sufficient to establish this aggravating circumstance. In 1966, he was convicted for assault with intent to murder, as has already been discussed. In 1981, he pled guilty to and was convicted of two first degree murders, the 1975 murder of Patricia Hitt and the 1976 murder of Venora Hyatt. “The Section 13-11-6(4) aggravating circumstance does exist. The capital offense involved rape. The Defendant murdered Cheryl Lynn Payton after raping her. “The Section 13-11-6(8) aggravating circumstance does exist. [The trial court's discussion of the § 13-11-6(8) aggravating circumstance is quoted above.]”

The court found that no statutory mitigating circumstances existed. However, the court did find that the following nonstatutory mitigating circumstances existed: “The defendant was under some mental or emotional disturbance at the time of the crime, but it was not extreme. The fact that the Defendant was under some mental or emotional disturbance at the time of the crime will be and is considered as a nonstatutory mitigating circumstance.... He is and was schizoid, which means he is detached.... The defendant is and was paranoid, which means he has persecutorial delusions.... He also has necro-sadistic tendencies, which means he likes to cut up on or abuse dead bodies. He displayed those necro-sadistic tendencies when he returned to Cheryl Lynn Payton's body the day after he murdered her and cut on it with a knife. The rape and murder of Cheryl Lynn Payton was not caused by the defendant's schizoid personality, or by his paranoid tendencies, or by his necro-sadistic desire. Nonetheless, the Court does and will consider those personality disorders as nonstatutory mitigating circumstances and give them such weight as they deserve.”

Having independently weighed the evidence in the record, we feel that those nonstatutory mitigating circumstances found by the trial court deserve consideration. However, after consideration of these circumstances, we are of the opinion that the aggravating circumstances of the crime far outweigh the mitigating circumstances.

After review of the entire record, this Court is convinced that Thomas Warren Whisenhant received a fair trial; his sentence of death by electrocution for the murder of Cheryl Lynn Payton is due to be affirmed.

AFFIRMED.

HORNSBY, C.J., and MADDOX, JONES, SHORES, ADAMS, HOUSTON and STEAGALL, JJ., concur.

Whisenhant v. Allen, 556 F.3d 1198 (11th Cir. 2009). (Habeas)

Background: Following affirmance on appeal of prisoner's conviction of first degree murder and imposition of the death penalty, 482 So.2d 1225, prisoner filed petition for writ of habeas corpus. The United States District Court for the Southern District of Alabama, No. 02-00397-CV-WS-C, William H. Steele, J., denied petition, and appeal was taken.

Holdings: The Court of Appeals held that: (1) trial counsel's failure to present evidence of insanity at guilt phase of capital murder trial was reasonable trial strategy and not deficient; (2) FBI reports made after the murder of prior murder victim, which occurred six months' prior to defendant's victim and statement by defendant's co-worker who stated that defendant was “weird” were not Brady material; (3) prosecutor's closing argument that no co-worker had testified that defendant was insane did not misstate the evidence and properly responded to the defense's closing argument; and (4) State courts' rejection of habeas petitioner's claim of judicial bias based on appearance of impropriety arising from trial judge's alleged ex parte communication with prosecutor was not contrary to, or unreasonable application of, federal law. Affirmed.

PER CURIAM:

This is a death penalty case in which petitioner-appellant, Thomas Warren Whisenhant, appeals the district court's denial of his 28 U.S.C. § 2254 petition for federal habeas relief. Whisenhant raises four claims in this appeal: (1) his counsel was ineffective at his 1981 guilt phase trial for failing to present his only defense of insanity; (2) the state failed to disclose exculpatory evidence during the 1981 trial and a 1987 penalty phase trial; (3) the prosecutor's closing argument at the 1981 trial was fundamentally unfair; and (4) the trial judge's ex parte dealings with prosecutors prior to the 1987 penalty phase trial violated Whisenhant's due process right to an impartial judge. We conclude that the district court properly denied habeas relief and AFFIRM.

I. BACKGROUND

On a rainy night in October 1976, Whisenhant abducted 24-year-old Cheryl Lynn Payton at gunpoint from a convenience store in Theodore, Alabama, where she was working alone.FN1 Whisenhant drove her to a remote area, raped her in his truck, and then took her into the woods where he shot her in the head, killing her. He later returned twice to the woods and mutilated Payton's body with his knife. After police officers apprehended him, Whisenhant confessed to the rape, killing, and mutilation of Payton. He also confessed to killing within the past year two other female convenience store clerks and mutilating one of them.FN2

FN1. A detailed statement of facts set forth in Whisenhant v. State, 370 So.2d 1080, 1081-86 (Ala.Cr.App.1979), was adopted by the Alabama Supreme Court in Ex Parte Whisenhant, 555 So.2d 235 (Ala.1989). FN2. Whisenhant pled guilty in 1981 to the first-degree murders of Venora Hyatt and Patricia Hitt and received a sentence of life without parole for each offense.

At the 1977 trial for Cheryl Payton's murder, Whisenhant presented numerous witnesses to establish an insanity defense. In particular, a noted psychiatrist, Dr. Claude L. Brown, testified that Whisenhant had a mental disease and that he had lost the power to distinguish right from wrong when he had killed Payton. Whisenhant, 370 So.2d at 1089. The jury rejected the insanity defense, and Whisenhant was convicted and sentenced to death. The Alabama Court of Criminal Appeals reversed his conviction, however, based on the prosecutor's improper closing argument and a fatal variance between the indictment and judgment. Whisenhant v. State, 370 So.2d 1080, 1103 (Ala.Cr.App.1979), cert. denied, 370 So.2d 1106 (Ala.1979).

A second jury trial was held in 1981. Prior to trial, Whisenhant's attorneys filed a motion for $3500 to hire two psychiatrists who had evaluated Whisenhant before the 1977 trial, and a more general motion for funds for expert witnesses. The trial court denied the first motion and granted the statutory cap of $500 for the second motion. Whisenhant's counsel firmly believed the trial court committed reversible error by denying Whisenhant's motion for funds for the psychiatrists, and decided not to present any evidence of insanity. Whisenhant was again convicted and sentenced to death.

On appeal, Whisenhant raised the perceived error of the trial judge's denial of his motion for funds, but the Alabama Court of Criminal Appeals found no constitutional violation. Whisenhant v. State, 482 So.2d 1225, 1228-30 (Ala.Cr.App.1982). Although the Alabama court affirmed his conviction, it reversed his death sentence based on the prosecutor's improper opening statement at the sentencing phase, which mentioned other crimes allegedly committed by Whisenhant that were not introduced at trial. Id. at 1239-40. After further appellate review, the Alabama Supreme Court declared the error was not harmless and remanded the case for a new sentencing trial. Ex Parte Whisenhant, 482 So.2d 1247, 1249 (Ala.1984) (per curiam).

In 1987, a third penalty phase proceeding occurred. At this proceeding, Whisenhant again presented evidence of mental illness but a jury unanimously voted to sentence Whisenhant to death for the third time. The Court of Criminal Appeals affirmed the death sentence, as did the Alabama Supreme Court. Whisenhant v. State, 555 So.2d 219 (Ala.Cr.App.1988); Ex parte Whisenhant v. State, 555 So.2d 235 (Ala.1989). The United States Supreme Court denied Whisenhant's petition for writ of certiorari. Whisenhant v. Alabama, 496 U.S. 943, 110 S.Ct. 3230, 110 L.Ed.2d 676 (1990).

Whisenhant then began state habeas corpus proceedings by filing an Alabama Rule of Criminal Procedure Rule 32 petition. During discovery, Whisenhant received two FBI reports made after the murder of Venora Hyatt, which provided speculative profiles about the unidentified killer. Whisenhant also discovered a statement made to police officers by his co-worker Sandra Heverly who described Whisenhant as “weird.” R1-14, Exh. Vol. 39 at 362-67. Based on these documents, Whisenhant amended his complaint in 1995 to include a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Shortly before the Rule 32 hearing in October 1996, Whisenhant discovered a draft order granting Whisenhant's motion for funds to hire a psychiatrist. Prior to the 1987 trial, prosecutor Chris Galanos had given this proposed order to the trial judge, Circuit Judge Ferrill D. McRae, but not to defense counsel. Judge McRae entered an order the next day similar to the draft order but increased the amount of funds to $2,200. Based on this discovery, Whisenhant added a claim of judicial bias to his state habeas petition and moved to recuse Judge McRae from the Rule 32 proceedings. Judge McRae granted the motion for recusal “out of an abundance of caution and to avoid all appearance of impropriety.” R1-14, Exh. Vol. 36 at 319. After the Rule 32 hearing, Judge Braxton Kittrell denied the habeas petition in its entirety. The Alabama Court of Criminal Appeals affirmed the denial in an unpublished memorandum. The Alabama Supreme Court denied Whisenhant's petition for a writ of certiorari.

Having exhausted state court post-conviction remedies, Whisenhant filed a federal habeas petition pursuant to 28 U.S.C. § 2254. In a detailed 81-page order, the district court analyzed each of Whisenhant's fourteen claims before denying habeas relief. Whisenhant filed a motion for a certificate of appealability (COA), which the district court denied in part and granted on four grounds: (1) whether the trial court's denial of his motion for funds to employ psychiatrists prior to the 1981 guilt phase trial violated Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); (2) whether the prosecution's failure to disclose two FBI profiles and Sandra Heverly's statement until after the 1987 penalty phase trial violated Brady; (3) whether the inclusion of venire members at the 1981 trial who knew that Whisenhant had been convicted at his 1977 trial violated Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); and (4) whether the trial judge's ex parte dealings with prosecutors prior to the 1987 penalty phase trial concerning the proposed order for funds violated In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

Whisenhant then filed in this court an application for a COA on two of his denied claims: (1) ineffective assistance of counsel at the 1981 guilt phase trial for failure to present an insanity defense, and (2) prosecutorial misconduct at the 1981 trial based on the prosecutor's closing argument that no co-worker had testified Whisenhant was insane. We granted a COA on these two issues.

In his § 2254 appeal brief, Whisenhant states he has dropped the issues of whether the trial court's denial of his motion for funds violated Ake, and whether the jury composition violated Irvin. Because he does not raise these claims in his brief to us, these claims are abandoned. See Hendrix v. Secretary, Florida Dep't. of Corr., 527 F.3d 1149, 1154 (11th Cir.2008) (per curiam). We turn now to his remaining four claims for habeas relief.

II. DISCUSSION

A. Claim of Ineffective Assistance of Counsel

Whisenhant contends that he received ineffective assistance of counsel at his 1981 guilt phase trial because his attorneys failed to present any evidence that he was insane. He concedes that this decision was strategic-counsel believed the trial judge's denial of their motion for funds for psychiatrists was a locked-in error that would be disturbed if they presented evidence of insanity. Whisenhant argues that this strategy was unreasonable, however, in light of the voluminous evidence from the 1977 trial and his prior medical records. Morever, Whisenhant asserts that he was prejudiced by his attorneys' deficient performance because there was a reasonable probability of a different result had they presented the 1977 trial evidence, coupled with the two FBI reports and Sandra Heverly's statement that the state should have disclosed.

In order to obtain federal habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Whisenhant must show that the state court decision adjudicating his claims (1) was contrary to, or involved an unreasonable application of, clearly established Supreme Court precedents, or (2) unreasonably determined the facts in light of the evidence presented in the state courts. 28 U.S.C. § 2254(d). The first prong means that a state court identified the correct governing legal principle but unreasonably applied it to the facts of a petitioner's case. Wiggins v. Smith, 539 U.S. 510, 520, 123 S.Ct. 2527, 2534-35, 156 L.Ed.2d 471 (2003). To satisfy this standard, the state court's application must have been “ ‘objectively unreasonable,’ ” not just incorrect or erroneous. Id. (quotation omitted).

The state habeas court and the Alabama Court of Criminal Appeals correctly analyzed Whisenhant's claim under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires the petitioner to show both that his counsel's performance was deficient, and that the deficiency prejudiced his defense. 466 U.S. at 687, 104 S.Ct. at 2064. Both state courts found that trial counsels' strategy was reasonable, and that the result of the proceeding would not have been different if evidence of insanity had been presented.

An attorney's performance is deficient if the acts or omissions of counsel, in light of all the circumstances and facts of the particular case fall “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. The Supreme Court cautioned appellate courts not to second-guess counsel's assistance, noting how easy it is to view counsel's performance as unreasonable after an unsuccessful defense. Id. at 689, 104 S.Ct. at 2065. “Even the best criminal defense attorneys would not defend a particular client in the same way.” Id. at 689, 104 S.Ct. at 2065. To counteract the distorting effects of hindsight, the defendant bears the burden of overcoming a strong presumption that the challenged action is sound trial strategy. Id. at 689, 104 S.Ct. at 2065.

Whisenhant concedes that his trial attorneys made a strategic decision not to present any evidence of insanity but argues that this decision was unreasonable. Whisenhant argues that because trial counsel could have presented evidence of insanity, he should have. He asserts that trial counsel could have subpoenaed Dr. Brown, could have called a former police officer to testify about Whisenhant's behavior as a youth, could have read into evidence testimony and medical reports introduced at the 1977 trial, could have used the $500 granted by the trial court to hire experts instead of obtaining a serologist's report, and could have presented Whisenhant's federal prison medical records. Because this evidence was available to trial counsel, Whisenhant argues that it was unreasonable not to use it.

Whisenhant's argument ignores the fact that his attorneys' decision was made after substantial investigation into plausible lines of defense. Morris Dees, an experienced lawyer who founded the Southern Poverty Law Center, was lead counsel in all three of Whisenhant's trials. After investigating the case prior to the 1977 trial, he concluded insanity was Whisenhant's best defense. Dees felt that psychiatric testimony would be the linchpin because Whisenhant's mental illness would not be readily apparent to his friends and neighbors. Dees had serious doubts that jurors at the 1981 trial would accept an insanity defense, however, because “this was a case in their backyard where women were being killed and left dead all around the county.” R1-14, Exh. Vol. 38 at 213-14. Unlike the first trial which was held in another county, the 1981 trial was held in the same county the murder had occurred. Dees's assisting trial counsel, John Carroll, also doubted that a jury would accept an insanity defense based on the jurors' strong reactions at the 1977 trial to the horrific details of the murder. As a result, Dees felt that a jury surely would not find Whisenhant insane without live psychiatric testimony.

Dees believed it was “fundamentally unfair” and a violation of due process for the state not to provide an indigent with adequate funds for essential experts. R1-14, Exh. Vol. 38 at 216-17, 219. Dees's foresight proved correct when the Supreme Court decided in Ake that, pursuant to the Fourteenth Amendment's due process guarantee of fundamental fairness, the state must assure access to a psychiatrist if an indigent defendant's sanity is likely to be a significant factor in his defense. Ake, 470 U.S. at 74, 83, 105 S.Ct. at 1091-92, 1096. Although Ake was decided four years after the 1981 trial, Dees was aware of literature and laws at that time supporting his views, and he investigated the issue of the state's obligation to provide funds for an indigent. Based on his research, Dees believed the trial court's denial of the motion for funds for a psychiatrist was a “locked-down, lead-pipe, four-square” error in the record. R1-14, Exh. Vol. 39 at 327. Once an error is locked down, Dees explained his trial strategy is to “leave it there because, you know, the idea is to give your client a fair trial; and if the State has messed up by committing an error, then you would be guilty of malpractice if you didn't win on that error.” R1-14, Exh. Vol. 38 at 272.

After the trial court denied his motion for funds for a psychiatrist, Dees decided not to present any evidence of insanity. This is why he did not subpoena Dr. Brown to testify or pay Dr. Brown's fee out of his own pocket. Dees also considered but rejected the idea of reading into the record the testimony and reports of witnesses from the 1977 trial. Whisenhant's sister could no longer testify at the 1981 trial because of emotional problems, and Dees believed that her dramatic, emotional testimony at the 1977 trial would not be evident from merely reading her prior statements. Moreover, Dees felt that reading testimony into the record from the experts or their reports would have been “virtually useless” when the state was presenting live witnesses. Id. at 228-29. He also decided not to call Captain Bryant as a witness because his lay opinion about things that happened when Whisenhant was a child would serve little or no purpose without the psychiatric testimony. Given that the $500 granted by the trial court was insufficient to cover the fees for Dr. Brown testifying at trial, Whisenhant decided instead to use the money to test the victim's undergarments for sperm. Dees hoped to find evidence that Whisenhant did not rape the victim, which would provide a critical defense to the charge of capital murder.

In light of all these circumstances, trial counsel's decision not to present any evidence of insanity was a sound trial strategy that “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. Trial counsel made an informed, reasonable judgment after thoroughly investigating the law and facts relevant to Whisenhant's case. Such strategic choices are “virtually unchallengeable.” Id. at 690, 104 S.Ct. at 2066. The state courts' decisions that counsel's performance was not deficient comports with Supreme Court precedent.

Because Whisenhant has failed to satisfy the first requirement of Strickland, he cannot succeed on a claim of ineffective assistance of counsel and we, therefore, need not address whether counsel's performance prejudiced the defense. See Strickland, 466 U.S. at 687, 104 S.Ct. at 2064 (“Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.”). Habeas relief is denied on this claim.

B. Brady Claim

A COA was also issued on whether the State's failure to disclose two FBI profile reports and a statement by Sandra L. Heverly violated Whisenhant's rights under Brady. Both the state habeas court and the Alabama Court of Criminal Appeals determined that the undisclosed documents were not material, which under Brady means that Whisenhant has failed to show a reasonable probability of a different result had the documents been disclosed. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481 (1985). The Supreme Court has clarified that a defendant need not show he would have received a different verdict with the evidence, but rather that the suppressed evidence “could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). In determining whether the defendant received a fair trial, a court should consider the suppressed evidence “collectively, not item by item” since “the Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense.” Id. at 434, 436-37, 115 S.Ct. at 1567.

The FBI reports were generated to assist authorities in finding the unknown killer of Venora Hyatt, who was murdered about six months before Cheryl Payton. The first report, based on crime scene photographs, speculates that “[i]f perpetrator is truly schizophrenic, initial attack would probably have taken place in or around the store and would have been both sudden and fatal.” R1-14, Exh. Vol. 39 at 356. The second report references the autopsy results and opines that the probable subject suffers from simple schizophrenia and has usually been in contact with the victim on a number of previous occasions. The third undisclosed document is a statement by Sandra Heverly, a co-worker who dated Whisenhant for a few months in 1974. Heverly stated that Whisenhant would wiggle his feet when watching television and giggle even though nothing was funny; his eyes would sometimes get “glassy looking”; he would watch her drive and “grin up a storm”; he was “weird”; and all the people who used to work with him at the ship yard “knew how weird he was.” Id. at 363-67.

With respect to the materiality of these three documents at the 1981 guilt phase trial, trial counsel testified that he would not have used them given his strategic decision not to offer any evidence of insanity. Because the disclosure of these documents could not have affected the outcome of Whisenhant's 1981 trial, the Alabama Court of Criminal Appeals correctly determined that these documents were not material. Bagley, 473 U.S. at 682, 105 S.Ct. 3383.

Nor were the undisclosed documents material to the 1987 penalty phase trial. Whisenhant's counsel presented numerous witnesses at the 1987 trial who testified about Whisenhant's personality and mental state. Dr. Brown explained in detail how Whisenhant's troubled childhood and domineering mother resulted in a history of violence against women. Dr. Brown diagnosed Whisenhant as a schizoid personality with a mental disease that people around him in daily life would be unlikely to notice given its episodic manifestations. Dr. Brown's conclusions were corroborated by another expert, Dr. Tanay, whose report was read partly into evidence. In summarizing the insanity evidence presented, the district court found that “the defense constructed a detailed mosaic of evidence advancing its position that Whisenhant was under the duress of an extreme mental disturbance, that he was unable to appreciate the criminality of his conduct, and that he otherwise suffered from psychological and emotional problems when he raped and murdered Payton.” R1-22 at 34.

In light of all the evidence at the 1987 penalty trial, the marginal value added by the two FBI profile reports and Heverly's statement would not have “put the whole case in such a different light as to undermine confidence in the verdict.” Kyles, 514 U.S. at 435, 115 S.Ct. at 1566. The FBI reports were speculative profiles involving a different victim that included opinions which both matched and did not match certain aspects of Whisenhant's character and his murder of Cheryl Payton. At best, they would have been cumulative of some of Dr. Brown's expert testimony. Likewise, Heverly's lay opinion that Whisenhant was weird would not have significantly bolstered Dr. Brown's testimony. This is especially true given that Heverly's descriptions contradict Dr. Brown's opinion that Whisenhant's co-workers would not readily notice any strange behavior. It is thus highly unlikely that disclosure of these documents would have changed the outcome of the 1987 trial. The Alabama Court of Criminal Appeals' decision reasonably applied Brady and its progeny in determining that the undisclosed information was immaterial and that no Brady violation occurred.

C. Prosecutorial Misconduct Claim

Whisenhant next challenges the prosecutor's closing argument at his 1981 guilt phase trial that no co-worker testified Whisenhant was insane. In his closing argument, the prosecutor remarked as follows: If these three fine criminal defense lawyers had found any doctor, any friend, any co-worker, anyone that knew the Defendant and they said he was insane, don't you think you would have heard from them? You haven't heard a word, and these three lawyers are very very good. Nobody has come in here and said that Tommy ran around eating dirt, did they, running naked and jumping on women at bus stops and that he was insane. No. The reason is simply this, they couldn't find anybody to say it. Mr. CARROLL: Objection, Judge that's not true. THE COURT: He has a right to argue his inferences.R1-14, Exh. Vol. 16 at R618-19. At the same time the prosecutor made this statement, Whisenhant alleges the prosecutor knew the state had deceptively suppressed co-worker Sandra Heverly's statement that Whisenhant was weird. Whisenhant asserts that the prosecutor biased the jurors against a finding that Whisenhant was mentally ill and deprived him of the opportunity to object to the improper statement, thereby violating his due process rights under Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986).

In Darden, the Supreme Court recognized that a defendant's due process right to a fair trial is not infringed by a prosecutor's remarks that are “undesirable or even universally condemned.” 477 U.S. at 181, 106 S.Ct. at 2471 (citation and punctuation omitted). Instead, the comment must have infected the trial with such unfairness that the conviction constitutes a denial of due process. Id. at 181, 106 S.Ct. at 2471 (citation and punctuation omitted). Any challenged remarks must be evaluated in context based upon the defense argument that preceded it. Id. at 179, 106 S.Ct. at 2470. Where the “objectionable content was invited by or was responsive to the opening summation of the defense,” a reviewing court must determine the comment's effect on the trial as a whole. Id. at 182, 106 S.Ct. at 2472.

As in Darden, the prosecutor's challenged comment here was responsive to the defense's closing argument and did not misstate the evidence. Whisenhant's attorney argued that Whisenhant was insane, as evidenced by the brutal facts of the murder, and Whisenhant's confession that he did not know why he killed the victim and could not control his actions. The prosecutor then responded by pointing out that no co-workers had testified Whisenhant was insane. This comment did not misrepresent Heverly's statement, which never characterized Whisenhant as insane, only “weird.” R1-14, Exh. Vol. 39 at 365. Heverly denied that Whisenhant ever threatened her, used any violence against her, or even made any sexual advances toward her. Moreover, Heverly lost contact with Whisenhant in 1975 and his allegedly strange behavior occurred while they were dating in 1974, approximately two years before Cheryl Payton's murder in 1976. Based on the foregoing, the Alabama Court of Criminal Appeals correctly found that the prosecutor's argument was correct because the “behavior described by Sandra Heverly clearly fell short of insanity.” R1-14, Exh. Vol. 42, R44 at 4.

Whisenhant argues that the prosecution's suppression of Heverly's statement precluded him from objecting to the improper statement. As noted, however, Whisenhant's attorney did object to the prosecutor's comments that the defense could not find anybody to say Whisenhant was insane, but the trial judge overruled the objection as a permissible argument. In light of the overwhelming evidence of Whisenhant's guilt and defense counsel's tactical decision not to present any evidence of insanity, the likelihood that the jury's decision was influenced by the prosecutor's isolated comment is minimal. See Darden, 477 U.S. at 182, 106 S.Ct. at 2472 (heavy weight of evidence against petitioner reduced the likelihood that an improper closing argument influenced the jury).

Viewing the trial as a whole, we conclude the prosecutor's invited response about the lack of insanity testimony by a co-worker did not render Whisenhant's trial fundamentally unfair. See United States v. Frazier, 944 F.2d 820, 825-26 (11th Cir.1991) (no due process violation where defense invited prosecutor's rebutting argument and there was overwhelming evidence of defendant's guilt). Whisenhant is, therefore, not entitled to habeas relief on his claim of prosecutorial misconduct.

D. Claim of Judicial Bias

In his final claim for habeas relief, Whisenhant asserts that the trial judge's bias and his appearance of partiality at the time of the 1987 penalty phase trial violated In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955). Specifically, Whisenhant alleges that Judge McRae had an ex parte communication with the prosecution before the 1987 trial in order to cover up a potential error that occurred in the 1981 trial. This purported scheme between Judge McRae and the prosecution deprived him of his constitutional right to an impartial judge.

Prior to the 1987 penalty phase trial, Whisenhant filed a motion for funds for a psychiatrist. Chris Galanos, the Mobile County District Attorney in 1987, gave Judge McRae a draft order granting that motion. Galanos attached a handwritten cover note stating that the order “enumerates facts intended to preclude Ake error during the guilt stage, but I am not sufficiently familiar with the facts to determine the accuracy of the order. Let me know what you want to do.” R1-14, Exh. Vol. 36 at 314. After making some minor revisions and increasing the amount of the funds from $2000 to $2200, Judge McRae entered an order the next day granting Whisenhant's motion.

The state habeas court found that this claim was procedurally defaulted and, alternatively, lacked merit because even assuming the trial judge had ex parte communications with the prosecutor, the result was that Whisenhant received the money he had requested. The Alabama Court of Criminal Appeals only considered the claim on its merits. It found there was no evidence that the trial judge knew the motion was not served on the defense. There was also no potential error to be covered up because Judge McRae's denial of the 1981 motion for funds had already been affirmed on appeal before the draft order was submitted. See Whisenhant v. State, 482 So.2d 1225, 1228-30 (Ala.Cr.App.1982). Finally, the trial judge's order granted the funds Whisenhant had sought. Based on the foregoing, the Alabama Court of Criminal Appeals determined that Whisenhant failed to offer any evidence that the trial judge was personally biased or partial.

Whisenhant challenges the finding by the Court of Criminal Appeals that Judge McRae did not know the motion was not served on the defense. He claims this finding is based on an unreasonable determination of the facts in light of the evidence presented at the Rule 32 proceeding. Factual findings by a state court are presumed correct unless the appellant rebuts the presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Henyard v. McDonough, 459 F.3d 1217, 1240 (11th Cir.2006) (per curiam), cert. denied, 549 U.S. 1284, 127 S.Ct. 1818, 167 L.Ed.2d 328 (2007). Whisenhant had a full and fair opportunity to present evidence on this issue at the state habeas hearing. At that hearing, Whisenhant called as a witness Chris Galanos, who admitted he did not serve Whisenhant's trial attorneys with a copy of the draft order. Whisenhant did not ask Galanos whether he told Judge McRae that fact, however. Nor did Whisenhant call Judge McRae as a witness. Although the habeas judge stated that Judge McRae should only be called as a witness if “absolutely essential,” the habeas judge did not forbid Whisenhant from doing so. R1-14, Exh. Vol. 37, State Habeas Corpus Hearing on 24 October 1996 at 1-2. Without Judge McRae's testimony, we can only speculate as to what he knew and did not know. The burden was on Whisenhant to prove his claimed violation, and he has failed to do so. See Hendrix, 527 F.3d at 1153 (state court's finding was a reasonable determination of the facts where petitioner failed to present evidence at the state habeas hearing to support his claim). Thus, Whisenhant has not presented clear and convincing evidence to rebut the presumption of correctness afforded to the state court's factual finding.

Even if Judge McRae had known that the defense did not receive a copy of the draft order, Whisenhant has failed to establish a constitutional violation. To the extent that Whisenhant argues that Judge McRae's “appearance of partiality” violates his due process rights, we have held that “there is no Supreme Court decision clearly establishing that an appearance of bias or partiality, where there is no actual bias, violates the Due Process Clause or any other constitutional provision.” Id. at 1153; see also Davis v. Jones, 506 F.3d 1325, 1336-37 (11th Cir.2007) (no due process violation where petitioner claims only an appearance of partiality and not actual bias). Thus, in so far as Whisenhant claims the trial court's ex parte actions created an appearance of partiality, we conclude that the state courts' rejection of Whisenhant's claim of judicial bias was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).

With respect to Whisenhant's claim of actual bias, he fares no better. It is long established that “[a] fair trial in a fair tribunal is a basic requirement of due process.” In re Murchison, 349 U.S. at 136, 75 S.Ct. at 625. The Supreme Court has identified various situations in which “the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.” Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464, 43 L.Ed.2d 712 (1975). Such cases include those in which the judge has a pecuniary interest in the outcome or has been personally abused or criticized by the party before him. Id.

None of the cases cited by Whisenhant are analogous to his own. In re Murchison involved a judge acting under state law as a one-man grand jury who later charged the witnesses with contempt based on their grand jury testimony, then tried and convicted them. 349 U.S. at 134-35, 75 S.Ct. at 624-25. The judge based his judgment of contempt on his own personal knowledge and impressions of what had occurred in the grand jury room, including his opinions that the witness was insolent and defiant, even though the judge's opinions could not be cross-examined. Id. at 138, 75 S.Ct. at 626. The Supreme Court held that it was a violation of due process for “a judge to act as a grand jury and then try the very persons accused as a result of his investigations.” Id. at 137, 75 S.Ct. at 625.

Three other cases cited by Whisenhant also involved criminal contempt proceedings in which the Court held that a judge other than the one reviled by a contemnor should decide the contempt issue. In Offutt v. United States, 348 U.S. 11, 12, 75 S.Ct. 11, 12, 99 L.Ed. 11 (1954), a trial judge repeatedly clashed with defense counsel throughout a 14-day trial, ending in a finding of criminal contempt against trial counsel, which the Supreme Court reversed. In concluding that the trial judge was biased and not impartial, the Supreme Court emphasized that this was “not a rare flareup,” but rather a “continuous wrangle on an unedifying level between the two.” Id. at 17, 75 S.Ct. at 15. Likewise, in Taylor v. Hayes, 418 U.S. 488, 501, 94 S.Ct. 2697, 2705, 41 L.Ed.2d 897 (1974), a running controversy between the trial judge and defense counsel escalated during a 10-day trial to the point that the trial judge's “mounting display of an unfavorable personal attitude toward petitioner, his ability, and his motives” had left personal stings on both sides. In contrast, the trial judge in Mayberry v. Pennsylvania, 400 U.S. 455, 465-66, 91 S.Ct. 499, 505, 27 L.Ed.2d 532 (1971), was not “an activist seeking combat” like the judge in Offutt or Taylor. Nevertheless, the defendant's cruel slanders so vilified the trial judge that the judge “necessarily becomes embroiled in a running, bitter controversy,” requiring a new judge to preside over a contempt proceeding. Mayberry, 400 U.S. at 466, 91 S.Ct. at 505.

It is clear that the judicial bias cases cited by Whisenhant involve totally different facts from his own case. There is no evidence that Judge McRae was involved in a “running controversy” with Whisenhant or Whisenhant's attorneys. Neither side made personal attacks against the other, and Judge McRae never displayed an inappropriate or hostile attitude toward the defense. Moreover, the order granting Whisenhant's motion for funds benefitted the defense. The cover letter by Chris Galanos does not establish that Judge McRae was in cahoots with the prosecution, nor that he signed the order granting the motion for funds in order to protect against a potential Ake error in the 1981 trial. As the district court adroitly concluded,

Under the circumstances, Whisenhant's accusations of a judicial/prosecutorial conspiracy in a smoke-filled backroom are not credible where the “conspiracy” ' s object was an unremarkable order that gave the defense exactly what they wanted and made accurate observations about evidence available to the defense in earlier proceedings. Had a “conspiracy” truly been hatched, the [c]ourt suspects it would not have been used as a vehicle to grant a defense motion and make uncontroversial observations about evidence available in 1981. If Judge McRae and Galanos had ex parte dealings regarding the psychiatrist order, such interactions, without more, are in no way symptomatic of the kind of prejudice, hostility and antagonism required to support a finding of judicial bias. R1-22 at 58 n. 71. Based on a thorough review of the record, we conclude that the Alabama courts' denial of Whisenhant's judicial bias claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law as determined by the Supreme Court. We therefore deny relief on this claim.

III. CONCLUSION

Whisenhant filed this appeal seeking federal habeas relief from his second conviction and third death sentence for the 1977 murder of Cheryl Payton. We hold that Whisenhant received effective assistance of counsel at his 1981 trial because trial counsel made a reasonable, strategic decision not to present evidence of insanity. In addition, the FBI profile reports and a co-worker's statement were not material to either the 1981 guilt phase trial, where no evidence of insanity was presented, or to the 1987 penalty phase trial, where abundant evidence of mental illness was presented. The prosecutor's closing argument that no co-worker had testified that Whisenhant was insane did not misstate the evidence and properly responded to the defense's closing argument. Finally, the trial judge did not evince bias or partiality against Whisenhant when it signed an order prior to the 1987 trial granting Whisenhant's motion for funds for a psychiatrist. As Whisenhant is not entitled to relief on any of his claims, the judgment of the district court is

AFFIRMED.