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09/30/94 M.S.B. v. STATE

September 30, 1994

M.S.B.
v.
STATE



Appeal from Mobile Juvenile Court. (JU-86-0847.11, JU-86-0847.24, JU-86-0847.25, and JU-86-0847.26). John Butler, TRIAL JUDGE.

Released for Publication February 10, 1995.

Taylor

The opinion of the court was delivered by: Taylor

TAYLOR, JUDGE

The appellant, M.S.B., *fn1 a 17-year-old, was charged with two counts of capital murder and two counts of first degree burglary. The prosecution filed a motion to transfer the cause for trial in the Circuit Court for Mobile County. The court granted the motion and this appeal follows.

The state's evidence tended to show that on December 6, 1993, the body of Aline Meinhardt was discovered in her home in Saraland. Meinhardt's body was found lying face down on her bed; her hands were tied to the bedposts. She had been strangled with an electrical cord attached to a small Crockpot. Torn pages from a book had been placed around her body on the bed, turpentine had been poured around her, and she had been ignited. Her house had been ransacked. An autopsy revealed that she died as a result of strangulation, smoke inhalation, and burns. Two fingerprints found at the entry to the victim's house were identified as the appellant's.

On January 2, 1994, the body of John Edward Cimprich was found in his home in Saraland. He died as a result of multiple "chop" wounds, consistent with those made by an axe, to his head, neck, and back. A left-hand palm print identified as the appellant's was found on a piece of paper lying next to the victim's body. Witnesses stated that a person matching the appellant's description was seen driving the victim's automobile after the murder.

I

The appellant initially contends that the court erred in allowing a psychometrist to testify as an expert at the transfer hearing because, he says, he was not a "qualified mental health professional" as that term is defined in Rule 11.3(d), *fn2 Ala.R.Crim.P. The psychometrist testified that his opinion was that the appellant should not be admitted to an institution for the mentally retarded.

Because this case involves a juvenile transfer hearing, § 12-15-69(b), Code of Alabama 1975, and not Rule 11.3(d), controls. This section states:

"(b) Where there are indications that the child may be physically ill, mentally ill or mentally retarded, the court, on its own motion or motion by the prosecutor or that of counsel for the child, may order the child to be examined at a suitable place by a physician, psychiatrist, psychologist or other qualified examiner, under the supervision of a physician, psychiatrist or psychologist who shall certify such examiner's findings in writing, or an examiner approved by the department of mental health prior to a hearing on the merits of the petition."

(Emphasis added.)

Kevin McCaskey, a court psychometrist and therapist at Strickland Youth Center in Mobile, Alabama, testified at the transfer hearing that he administered several different intelligence tests to the appellant and that those tests showed the appellant's IQ to be 76. McCaskey testified that he has a bachelor's degree in clinical psychology and a master's degree in counseling psychology and that he had completed a six-month internship in this field. He said that he had previously worked at Charter Hospital in Mobile as a test evaluator and at Libra House Counseling Center through Mobile Mental Health. He also testified that he is a licensed professional counselor and that his license is issued by the state of Alabama. McCaskey further testified that he had previously been accepted in court as an expert in the field of psychological testing.

It is not necessary that the individual administering the test and testifying as to the results satisfy the requirements of Rule 11.3, because the necessary requirements are more specifically set out in the statute regarding juvenile transfer hearings, § 12-15-69(b). McCaskey's met the requirements of § 12-15-69(b) and was therefore correctly allowed to testify that based on the appellant's test scores there was no reason to believe that the appellant should be admitted to an institution for the mentally retarded. § 12-15-34(c), Code of Alabama 1975. ...


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