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11/21/78 CLYDE CADE v. STATE

November 21, 1978

CLYDE CADE
v.
STATE



Before Harris, Presiding Judge. All the Judges concur.

The opinion of the court was delivered by: Harris

HARRIS, Presiding Judge.

The grand jury of Geneva County indicted appellant for the capital murder of L. D. Sizemore who at the time of his death was the Sheriff of that county.

The indictment was brought under the provisions of Section 13-11-2(a)(5), which reads as follows:

"(5) The murder of any police officer, sheriff, deputy, state trooper or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job related act or performance of such officer or guard."

Omitting the formal parts the indictment alleges:

"Count 1

"The Grand Jury of said County charge that before the finding of this Indictment, Clyde Cade, unlawfully and with malice aforethought killed L. D. Sizemore, a sheriff, to-wit: the Sheriff of Geneva County, Alabama by shooting him with a gun or pistol,

"Count 2

"The Grand Jury of Geneva County, Alabama further charge that before the finding of this indictment, Clyde Cade, unlawfully and with malice aforethought killed L. D. Sizemore, a sheriff to-wit: the sheriff of Geneva county, Alabama, because of an official or job related act or performance of such officer, to-wit: the arrest of the said Clyde Cade, by shooting him with a gun or pistol.

"Count 3

"The Grand Jury of Geneva County, Alabama, further charge that before the finding of this indictment, Clyde Cade did murder a sheriff, to-wit: L. D. Sizemore, the sheriff of Geneva County, Alabama, because of an official or job related act or performance, to-wit: investigating a complaint involving the said Clyde Cade, against the peace and dignity of the State of Alabama."

Appellant filed a motion for a psychiatric examination, alleging that he was unable to understand the proceedings against him and properly assist in his own defense. Following an evidentiary hearing, the Geneva County Circuit Court granted appellant's motion, ruling that he be examined at Searcy Hospital "for such length of time as is necessary to determine the mental condition of the defendant so far as it respects his criminal responsibility or competency to stand trial."

In compliance with the court's order, an examination of appellant was conducted. Officials at Searcy Hospital returned the following report to the court:

"October 21, 1977

"Honorable P. B. McLauchlin, Jr., Judge

"Circuit Court of Geneva County, Alabama

"Geneva, Alabama 36340

"RE: CADE, Clyde Our File # 11 29 45

"Dear Judge McLauchlin:

"We are writing with reference to Clyde cade reportedly a 49 year old separated black male who was admitted to Searcy Hospital for the first admission September 14, 1977 under your commitment order dated the 13th day of September, 1977 with information that he was ordered committed to the State of Alabama, Department of Mental Health for such length of time as necessary to determine the mental condition of the defendant so far as it respects his criminal responsibility or competency to stand trial. It was further ordered that the officials of Searcy Hospital place Clyde Cade under observation and examination with the view of determining the mental condition of the defendant and the existence of any mental disease or defect which would affect his present criminal responsibility or his criminal responsibility at the time of the commission of the alleged crime.

"Post-admission evaluation, including physical examination, mental status examination, social history study, psychological examination, psychiatric evaluation and neurological evaluation, has been completed and we are submitting the following report of our findings.

"Psychological examination revealed an intellectual functioning level that falls within the low average range. Testing suggested some socio-cultural and educational deprivation and possible organicity. Mild deficits were noted in general information, vocabulary and comprehension. Memory, reasoning and abstraction were in the average range. Mild retardation was noted on tasks requiring visual-motor coordination. Testing for organicity revealed mild to borderline neurological deficits probaly stemming from a history of trauma to head. Despite these mild deficits, the examiner reported that the patient has adequately compensated and his psychological functioning is not significantly impaired. Projective tests were suggestive of hostility, emotional liability and acting out tendencies. The examiner reported these was not much evidence for thought disorder or psychotic type of thinking disturbance. However, the examiner reported that the patient does show distrustful attitudes, and persecutory ideas and feels victimized. Personality date revealed a self-centered, passive-aggressive rebellious individual who apparently failed to learn socialized behaviors from earlier mistakes. Emotionally the examiner described the patient as shallow, immature and unpredictable. The examiner states that the patient feels easily slighted and may react with violence when his adequacy is threatened. The examiner states that the patient's capacity for guilt and remorse seems limited and that he is likely to project blame on others for his problems. His social judgment and insight into difficulties were thought to be less than adequate. His major defense mechanisms were denial, projection and acting out. Overall profile was suggestive of antisocial personality disorder with superficial passive-aggressive features. Due to the characterological nature of his coping, the examiner reported that prognosis is very guarded.

"Initial psychiatric evaluation revealed speech to be fairly low, fairly clear and of moderate speed. His affect was somewhat theatrical, labile and very euphoric. No aberrations of thought were evident although the patient stated that he hears voices and he said that this scares him and then he laughed broadly and glanced about the room, according to the report of the examiner. Reality contact appeared fairly good. Associations appeared quite tight and the patient appeared in control although there was profuse tangential verbal output. Sensorium appeared clear. Monetary calculations were fairly slow. Memory in general appeared to be extremely good as the patient gave explicit details but these were not corroborated. Proverb interpretations were fairly good. The examiner stated that it was very difficult to assess his insight at the time of the initial interview. Judgment by history was described as poor. Intellectual capacity appeared average or above although there was thought to be some socio-cultural deprivation. Diagnosis was deferred at the time of the initial evaluation and it was recommended that we refer the patient for a complete organic work-up. "Neurological evaluation revealed a normal EEG and a normal skull x-ray. The neurological consultation impression revealed little evidence of any type of memory problem, according to the consultant neurologist. The consultant also reported that he was very skeptical that this man has any kind of post concussive syndrome which might account for actions which he would not remember and/or be responsible for. He states this is based on the fact that he does not have a good clinical picture for seizures, that he is having a spell every day but no seizure has been observed by the staff, and the fact that his EEG was so normal as to be called "normal normal" rather than just plain normal.

"Subsequent psychiatric evaluations were conducted October 6, 1977 and October 13, 1977. In the last evaluation it is reported by the consultant psychiatrist that the evaluating team has not been able to find any significant physical or organic problems in this patient and that the patient has shown normal and consistent reasoning and judgment. It is further reported that the patient appears to have fairly good recent and remote memory of all with adequate temporal sequence and that he also has good social awareness demonstrated here. A diagnosis of anti-social personality with superficial passive-aggressive features has been made.

"Considering the above mentioned evaluation procedures, it was the opinion of the consultant psychiatrist in collaboration with the treatment team that Clyde Cade is sane, is mentally competent to stand trial, knows the difference between right and wrong and is able to cooperate and communicate with counsel in his defense. Therefore, he should be remanded to the legal authorities for further Disposition of his pending charge.

"Our evaluation being complete, we are requesting that appropriate orders be issued to remand Clyde Cade to the custody of the Geneva County Sheriff's Department.

"With regard to Mr. Cade's criminal responsibility at the time of the commission of the alleged crime, we cannot make any definitive statement as this report reflects our evaluation from the time he was admitted to this hospital.

"Yours very truly,

"THE SEARCH HOSPITAL

/s/Kay McLeod, ACSW, (Miss) Kay McLeod, ACSW, Director of Unit Administration

"APPROVAL: /s/ Jaime E. Condom, M.D., Jaime E. Condom, M.D., Superintendent

"/Schwarzauer

"cc: Sheriff, Geneva County, Alabama Geneva, Alabama"

On the basis of this report, observation and Conclusions the trial Judge ruled him competent to stand trial.

Appellant next filed a motion to quash the indictment on the ground that the grand jury was illegally drawn through a method intentionally excluding persons on account of race, sex, or income. Accompanying this motion were requests that the jury venire be quashed and that the jury rolls be produced for examination. These motions were subsequently withdrawn.

Appellant also filed a demurrer to the indictment and a further motion to Quash the Indictment. These motions are set out below.

"DEMURRER TO INDICTMENT

"Comes now the defendant and demurs to the indictment heretofore returned him in this cause, and as grounds for said demurrer sets out and assigns the following, separately and severally:

"1. No facts are averred in Count 3 of the indictment as to how and by what means the alleged murder was done.

"2. No facts are averred to show that the alleged conduct of the defendant was unlawful. 3. No facts are averred in Count 3 of the indictment to show that the alleged conduct of the defendant was unlawful.

"4. No facts are averred to show that the alleged conduct of the defendant was done with malice aforethought.

"5. No facts are averred in Count 3 of the indictment to show that the alleged conduct of the defendant was done with malice aforethought.

"6. No facts are averred to show that the official or job related act or performance was an official or job related act of the offices allegedly murdered.

"7. No facts are averred in Count 3 of the indictment to show that one official or job related act or performance was an official or job related act of the offices allegedly murdered.

"8. The indictment does not state an offense.

"9. Count 3 of indictment does not state an offense.

"10. The averments of the indictment are unclear, uncertain, and indefinite.

"11. The averments in Count 3 of the indictment are unclear, uncertain, and indefinite.

"12. The indictment does not apprise the defendant of the charge against him.

"13. Count 3 of the indictment does not apprise the defendant of the charge against him.

"14. The time of the alleged offense is not averred in the indictment.

"15. The time of the alleged occurrence on which the charge made in the indictment is based is not alleged in the indictment.

"16. The place of the alleged offense is not averred in the indictment.

"17. The defendant is not sufficiently apprised of the charge against him to enable him to defend against it.

"18. The indictment is unconstitutionally vagues.

"19. The indictment does not state facts in such a manner as to enable a person of common understanding to know what is intended.

"20. The indictment does not charge an offense in the words of any penal statute.

"21. The averments of the indictment are not sufficiently definite to inform the defendant of what he should be prepared to defend against him.

"22. The averments in Court 3 of the indictment are not sufficiently definite to inform the defendant of what he should be prepared to defend against.

"23. The indictment does not identify the offense charge.

"24. The indictment in Court 3 does not identify the offense charge.

"25. The indictment is not sufficiently definite and clear enough to enable the Court to pronounce judgment and pass sentence.

"26. The indictment does not meet the constitutional tests of clarity and definiteness.

"27. The indictment is not sufficiently specific in its averments to enable the defendant to prepare his defense.

"28. The indictment is not sufficiently specific in its averments to foreclose the possibility of the defendant being placed in jeopardy for the same offense.

"29. The indictment is not sufficiently specific as to protect the defendant from being again charged and placed in jeopardy for the same offense.

"30. The indictment does not contain sufficient information to enable the defendant to reasonably understand the nature of the offense.

"31. The indictment does not sufficiently inform the defendant of the nature of the charge against him.

"32. The indictment does not set out the elements of any criminal offense.

"33. The indictment in Court 3 does not set out the elements of any criminal offense.

"34. The indictment does not set out the elements of the offense charged against the defendant.

"35. The indictment in Count 3 does not set out the elements of the offense charged against the defendant.

"36. The indictment is null and void because the statute upon which Counts 2 and 3 are based is unconstitutional under the Alabama and United States Constitution, specifically the Eighth Amendment and the due process, equal protection and privileges and immunities clauses of the Fourteenth Amendment to the United States Constitution, and Sections 6, 7 and 15 of the Alabama Constitution of 1901."

MOTION TO QUASH INDICTMENT

"The defendant above named, by and through his attorney, Myron H. Thompson, moved to quash the indictment on the grounds that:

"1. The statute (specifically Title 15, Section 342(3), et seq., Code of Alabama 1940, Recompiled 1958) upon which Counts 2 and 3 of the indictment are based, is in derogation and violation of the 8th and 14th Amendments to the United States Constitution and Sections 6, 7 and 15 of the Alabama Constitution of 1901, for the following reasons:

"(a) The provisions of the statute inflict cruel and unusual punishment upon the defendant.

"(b) The provisions require a mandatory imposition of the death penalty by the jury.

"(c) The provisions do not provide an opportunity for the jury to consider aggravating and mitigating circumstances.

"(d) The provisions do not provide the jury with an opportunity to participate in the penological phase of the criminal proceeding.

"(e) The provisions do not provide for a comparative appellate review of death sentences to insure that such punishment is not grossly disproportionate to the crime.

"(f) The death penalty is not a deterrent to the homicide allegedly committed by defendant, particularly because the mental incompetency of the defendant deprives him of the ability to conform his conduct to the requirements of the law.

"(g) Because the defendant is mentally deficient and cannot conform his actions to the requirements of the law, the death penalty as applied to him is so totally without penological justification, in that it results in the gratuitous inflection of suffering.

"(h) The statute as applied results in the discriminatory and arbitrary application of the death penalty."

Following the filing of these motions, appellant requested a change of venue, which was granted. The case was transferred to Dale County, Alabama.

Appellant the filed additional grounds for a demurrer to the indictment. They are set out below.

"ADDITIONAL GROUNDS OF DEMURRER TO INDICTMENT

"Comes now the Defendant and for additional grounds of demurrer to the indictment in this cause sets out and assigns the following, separately and severally:

"37. The indictment in Count I attempts to charge the Defendant with first degree murder, for which he could not be sentenced to death or to life imprisonment without parole, and in which lesser offenses could be included, and the indictment in Counts II and III thereof attempts to charge the Defendant under Chapter II of the Code of Alabama, 1975, with offenses for which death or life imprisonment without parole could be the only sentences, and which would not include any lesser offenses.

"38. The offense charged, or attempted to be charged in Count I of the indictment, and the offenses charged, or attempted to be charged in Counts II and III of the indictment cannot be included in the same indictment.

"39. The indictment does not aver any aggravating circumstances as required by Section 13-11-2, Code of Alabama, 1975.

"40. Count III of the indictment does not charge the Defendant with murder in the first degree under circumstances as set forth in Section 13-11-2[a](12), Code of Alabama, 1975.

"41. Count II of the indictment does not charge the Defendant with murder as required by Section 13-11-2[a](5), Code of Alabama, 1975.

"42. The indictment does not charge the Defendant with any of the offenses enumerated in Section 13-11-2, Code of Alabama, 1975.

"43. The indictment is so vague and ambiguous that the Defendant is unable to determine whether he is charged with an offense for which the death penalty or life imprisonment without parole could be inflicted, or some lesser crime."

The trial Judge sustained the demurrer as to Counts I and III and overruled the demurrer to Count II of the indictment. Appellant's motion to quash the indictment was denied. Additionally, appellant's request to be examined by a psychiatrist of his choosing at state expense, which was included in his motion for psychiatric examination, was denied.

Finally, appellant filed an additional motion to quash the indictment and an additional demurrer, both identically worded. The text of the motions in substance is set out below.

"1. The indictment as returned by the Grand Jury contains a misjoinder of offenses.

"2. The indictment as returned by the Grand Jury is duplicitous.

"3. The indictment as returned by the Grand Jury contains a misjoinder of offenses, in that Count I is for first degree murder, and Counts II and III are for offenses for which the Defendant can be sentenced to death.

"4. The action of the trial court in sustaining the Defendant's demurrer to Counts I and III of the indictment and overruling Defendant's demurrer as to Count II results in an arbitrary and capricious selection of an offense for which the Defendant could be sentenced to death, when the Grand Jury had also included in the indictment a Count in first degree murder for which the Defendant could not be sentenced to death.

"5. The action of the Grand Jury in returning an indictment containing both a Count in first degree murder and a Count setting forth an offense for which the Defendant can be sentenced to death (murder of a Sheriff because of an official or job related act or performance of such Sheriff) results in a delegation of authority to the trial Judge or to the District Attorney to make a selection as to which Count the Defendant will be tried under, contrary to law and the Defendant's constitutional rights.

"6. The Grand Jury cannot delegate its authority to decide whether the Defendant will be tried for an offense for which he could be sentenced to death or for an offense for which he could not be sentenced to death.

"7. The actions of the trial court result in an arbitrary and capricious decision that Defendant will be tried for an offense for which he can be sentenced to death when the Grand Jury also charged the Defendant with an offense for which he could not be sentenced to death.

"8. The inclusion of a Count of first degree murder and a Count of murder of a Sheriff because of an official or job related act or performance of such Sheriff in the same indictment is contrary to the Alabama Death Penalty Statute and to the constitutional rights of the Defendant.

"9. The inclusion of a Count in first degree murder and a Count of murder of a Sheriff because of an official or job related act or performance of such Sheriff in the same indictment is contrary to the spirit of the Alabama Death Penalty Statute and the constitutional rights of the Defendant."

The Court's order on these motions is set out below.

"Comes the defendant, Clyde Cade, in his own proper person and through his attorney and files an additional demurrer to the indictment and an additional motion to quash the indictment and the demurrer and motion to quash having been submitted to the Court and the Court having considered the same and each ground thereof, the Court finds as follows:

"1. That the Grand Jury of Geneva County preferred a three count indictment against the defendant which alleged the following:

"(a) Count I. Clyde Cade unlawfully and with malice aforethought killed L. D. Sizemore, a sheriff, to wit: the Sheriff of Geneva County, Alabama, by shooting him with a pistol.

"(b) Count II. Clyde Cade unlawfully and with malice aforethought killed L. D. Sizemore, a sheriff, to wit: the Sheriff of Geneva County, Alabama, because of an official or job related act or performance of such officer, to wit: the arrest of Clyde Cade, by shooting him with a pistol.

"(c) Count III. That Clyde Cade did murder a sheriff, to wit: L. D. Sizemore, the Sheriff of Geneva County, Alabama, because of an official or job related act or performance, to wit: investigating a complaint involving the said Clyde Cade.

"2. The Title 13-11-2, Code of Alabama, (1975) states as follows:

"(a) If the jury finds the defendant guilty, it shall fix the punishment at death when the defendant is charged by indictment with any of the following offenses and with aggravation, which must also be averred in the indictment and which offenses so charged with said aggravation shall not include any lesser offenses.

"(5) the murder of any police officer, sheriff, deputy, state trooper, or peace officer of any kind, or prison or jail guard while such prison or jail guard is on duty or because of some official or job related act or performance of such officer or guard.

"3. That on September 7, 1977, the defendant filed demurrers to the indictment and that the demurrers were sustained as to Count I and III of the indictment; that the demurrers were overruled as to Count II of the indictment and the defendant was arraigned and put to trial on Count II of the indictment.

"4. That the allegations set out in Count I characterized the aggravating circumstances as follows: killed L. D. Sizemore, a sheriff, to wit: the Sheriff of Geneva County, Alabama; that this language substantially followed the language of Title 13-11-2(a), (5) of the above statute; that if the statute is broken down in sections according to the placing of the word 'or', the statute would read as follows: the murder of any sheriff,...; the murder of a prison or jail guard while such prison or jail guard is on duty; the murder of any sheriff,...., prison or jail guard because of some official or job related act or performance of such officer or guard. This Court was of the opinion that in order to sufficiently express the aggravating circumstances in the indictment the Grand Jury not only and to allege that the deceased was a sheriff, but that he was on duty and murdered because of a job related act or performance. Therefore, the demurrer was sustained as to Count I in that it did not sufficiently state or express the aggravating circumstances even though if the statute is read as see out above the circumstances would be sufficiently alleged. In other words, the Court read the first section of the clause (5) with the last section of clause (5) and found that both had to be expressly averred before the aggravating circumstances were sufficiently set out.

"5. That the Court sustained the demurrer to Count III on the grounds that is failed to set out any means by which L. D. Sizemore was killed, that is by shooting him with a gun or pistol and that the Court was of the opinion that the essential common law of elements of first or second degree murder should be alleged rather than merely using the word 'murder'.

"6. The Court overruled the demurrer as to Count II and the defendant was arraigned on Count II and proceeded to trial on Count II of the indictment.

"7. That Count II of the indictment sufficiently alleges an offense and the aggravating circumstances as set out in Title 13-11-2, Code of Alabama (1975) and that said offense so charged with aggravation did not include any lesser included offenses.

"8. There is no question, in this Court's opinion, that in all three counts, the Grand Jury attempted to charge the defendant with the offenses and with aggravation as set out in Title 13-11-2, Code of Alabama, (1975) and the fact that certain counts of the indictment failed to so allege such offenses does not render the entire indictment demurrable and subject to motion to quash when one count of the indictment is sufficient to apprise the defendant of what he is charged with.

9. This Court further finds that the Alabama Death Penalty Statute does not prohibit a multi-count indictment where in first degree murder and first degree murder for which the defendant can be sentenced to death are joined in separate counts in the same indictment. The requirement is that defendant must be charged in the indictment with one of enumerated offenses and with aggravation; the aggravation must be averred in the indictment; and the offense so charged with aggravation shall not include any lesser offenses. The offense as set out in Count II did not include any lesser offenses and did apprise the defendant of what he was charged with and the punishment therefor.

"10. That if Count I is considered as a count alleging first degree murder without any attempt to allege aggravating circumstances and it is joined with a count setting forth an offense with which the defendant could be sentenced to death, this in itself does not make the action of the Grand Jury contrary to the law of Alabama or repugnant to the Constitution of the United States. In Gregg v. Georgia, 428 U.S. 153, 49 L.Ed.2d 859, 96 S.Ct. 2909, the Supreme Court held that opportunity for discretionary actions that are inherent in the processing of a murder case does not render the statute or the procedure unconstitutional. The fact that the state prosecutor has unfettered authority to select the person with whom he wishes to proseccute for a capital offense and to plea bargain or that the jury may convict the defendant of a lesser included offense does not render the procedure or the statute unconstitutional.

"Therefore, it is ORDERED AND ADJUDGED that the additional demurrers to the indictment are overruled and the additional motion to quash is denied.

"This the 13 day of March, 1978."

At arraignment, in the presence of appointed counsel, appellant entered pleas of not guilty and not guilty by reason of insanity to the charge against him. The trial court ordered that appellant be provided a copy of the list of names of the persons constituting the venire for trial and that he be supplied a copy of the indictment.

The jury found appellant guilty and fixed his punishment at death. The trial court conducted a sentencing hearing following the trial and adJudged appellant guilty, sentencing appellant to death. A summary of the evidence at trial, the evidentiary sentencing hearing, and the ...


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