Berard v. Alabama Petition for Writ of Certiorari to the Court of Criminal Appeals

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THE STATE OF ALABAMA - - - - - -  JUDICIAL DEPARTMENT
THE SUPREME COURT OF ALABAMA 

OCTOBER TERM, 1985-86

Ex parte State of Alabama
PETITION FOR WRIT OF CERTIORARI 
TO THE COURT OF CRIMINAL APPEALS

(Re: Jerome Vincent Berard
84-309 v *

State of Alabama)

Ex parte Jerome Vincent Berard
PETITION FOR WRIT OF CERTIORARI 
TO THE COURT OF CRIMINAL APPEALS

(Re: Jerome Vincent Berard
84-310 v.

State of Alabama)

PER CURIAM.
This is an appeal following retrial. On this retrial, 

the defendant, Jerome Vincent Berard, was convicted in the 
Circuit Court of Montgomery County of a capital offense



84-309, 84-310

based on Code 1975, § 13-11-2(a)(10) (intentionally killing 
two or more human beings by one or a series of acts). 
Following the conviction by a jury, a sentencing hearing was 
held in the presence of the same jury, which returned a 
recommendation that the defendant be sentenced to death. A 
sentencing hearing was then held before the trial judge, who 
also found that the aggravating circumstances outweighed the 
mitigating circumstances and that the defendant should be 
sentenced to death. The Court of Criminal Appeals, pursuant 
to the mandates of Beck v. State, 396 So. 2d 645 (Ala.
1980), reviewed the record and the issues presented by the 
defendant and upheld the conviction of the capital offense, 
but remanded the case to the trial court for a new sentencing
hearing. Berard v. State, [Ms. July 31, 1984] ___ So. 2d
___ (Ala. Crim. App. 1984). On rehearing, the court denied
the applications for rehearing from both the defendant and 
the State, but extended its original opinion in order to 
state that, on remand to the trial court, "this Court has 
clearly expressed its disapproval of a sentence to death in 
this case." Berard, supra.

Both the defendant and the State filed petitions for 
writ of certiorari to this Court. The defendant's petition 
for the writ is basically a request for this Court to review 
the issues concerning his conviction. The State's petition 
is a request for this Court to review the Court of Criminal 
Appeals' decision to remand the case for a new sentencing 
hearing. Because we are reversing the defendant's conviction 
of the capital offense and remanding his case for a new 
trial, we do not address the issues raised by the State with 
respect to the sentencing phase of the trial.

A complete statement of the facts in this case can be 
found in the opinion of the Court of Criminal Appeals

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84-309, 84-310

following the first trial in this case, Berard v. State, 402 
So. 2d 1044 (Ala. Crim. App. 1980). In that opinion, the 
Court of Criminal Appeals affirmed the defendant's conviction, 
but remanded the case for a new sentencing hearing. Before 
further action was taken, the conviction was reversed on 
authority of Beck v. State, supra, and that reversal necessitated 
a second trial, from which the present appeal was taken.

The defendant was charged with the capital murder of two 
young boys, ages 14 and 16, outside the Skatehaven skating 
rink in Montgomery in April 1978. At trial, the defendant 
entered pleas of not guilty and not guilty by reason of 
insanity, and he presented several expert witnesses on the 
issue of whether he was insane at the time of the crime.
One of those witnesses was Dr. Chester Jenkins, a psychologist, 
who testified that the defendant was probably having a 
psychotic episode at the time he shot the two boys and was 
suffering from latent schizophrenia. On cross-examination, 
the district attorney questioned Dr. Jenkins in the following 
manner:

"Q. Is he [defendant] capable then 
of having another psychotic episode?

"A. Certainly.
"Q. Not unlike the one you say he 

had on April the 14th and 15th of 1978?
"MR. DE MEIjJT [Defendant's attorney]:

Same objection.
"THE COURT: Overruled.
"Q. Sir?
"A. Do I think he is capable of 

having recurrent episodes? Yes, I do.

Outside the presence of the jury, this line of cross- 
examination had previously been discussed before the trial 
judge. The defendant's attorney objected to the district 
attorney's asking any question that concerned the future 
conduct of the defendant, on the grounds that such questions 
would prejudicially influence the jury in its findings and 
sentencing. At that time, the trial judge did not rule on 
the objection.

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84-309, 84-310

"Q. Recurring episodes, sir, let me 
ask you this: Is ne capable-of shooting 
somepody~else?

"MR. WISE [defendant's attorney]:
Same objection, Your Honor.

"THE COURT: Overruled.
"Q. Again?
"THE COURT: While having a psychotic 

episode?
"Q. While having a psychotic 

episode? Sir?
"A. Yes, I think so." (Emphasis 

added.)
The defendant contends that the question of whether he 

would shoot somebody else was very prejudicial to his 
defense and was meant solely to inflame the passions of the 
jury. The State argues, on the other hand, that this is 
valid cross-examination of an expert witness on the issue of 
the defendant's insanity plea and, therefore, that the trial 
court did not err in allowing this testimony into evidence.

The State has cited several cases stating that both the 
defense and the State have a "wide latitude" in introducing 
evidence of a defendant's acts, declarations, or conduct, 
occurring both prior and subsequent to the crime, when the 
defendant has interjected the issue of insanity. See, e.g., 
Nichols v. State, 276 Ala. 209, 212, 160 So. 2d 619, 621 
(1964); Barbour v. State, 262 Ala. 297, 303, 78 So. 2d 328, 
333 (1954); George v. State, 240 Ala. 632, 637, 200 So. 
602, 606 (1941). It is the State's contention that the 
question asked by the district attorney was used to shed 
light on the defendant's mental state at the time of the 
crime and to test the value and accuracy of the witness's 
opinion. See, Nichols, supra; George, supra. The State's 
argument appears to rest on the fact that there was a 
difference in the definition of the terra "latent

4.



84-309, 84-310

schizophrenia" as given by Dr. Jenkins and the definition of 
that terra as found in standard psychiatric books. Thus, the 
State argues, the question asked by the district attorney 
was relevant for the jury's determination of the value to be 
placed on Dr. Jenkins's testimony.

Although the district attorney's question may have had 
some relevance in testing the value to be given to Dr.
Jenkins's testimony, we must disagree with the State's 
interpretation of our prior cases. While the acts, declarations, 
and conduct of a defendant subsequent to the crime are 
admissible on the issue of insanity, the cases cited by the 
State make it clear that that principle relates to events 
occurring after the crime but before the trial. See,
Nichols, supra (the defendant's answers to questions three 
hours after the murder of his wife were admissible to shed 
light on his state of mind at the time of the murder);
George, supra (the defendant's attempted suicide while 
awaiting trial was admissible).

We have not been cited to any case in Alabama that 
approves of a prosecutor's asking a question about what the 
defendant is capable of doing in the future. We additionally 
note that this Court has previously stated that, as long as 
a prosecutor does not comment on the possibility that the 
defendant will commit future illegal acts, he may legitimately 
argue to the jury the need for law enforcement as a deterrent 
to crime. Ex parte Waldrop, 459 So. 2d 959, 962 (Ala.
1984); Cook v. State, 369 So. 2d 1251, 1255 (Ala. 1979). It 
would seem to be much more prejudicial to a defendant to 
allow the prosecutor to elicit this kind of testimony from a 
defense witness than it would be for the prosecutor to 
merely comment on that possibility in closing argument.

5.



84-309, 84-310

Our research has uncovered only one case which deals 
with this kind of situation. In State v. Barksdale, 590 
S.W.2d 931 (Tenn. 1979), the defendant had been charged with 
the crime of rape and had entered the plea of not guilty by 
reason of insanity. The psychiatrist called by the defense 
testified that the defendant was suffering from a mental 
disease which manifested itself in his inability to control 
his actions when he committed the rape. On cross-examination 
by the prosecution, the following took place:

"Q. If this jury should find this 
man not guTTty by reason of insanity, can 
you assure us that he won~rt go out this 
afternoon and- do it again?

"A. MR. SCHATZ [Defense Attorney]:
Your Honor, if the Court please, I think 
that is improper, and I would --(Interrupted)

"MR. AXLEY [State's Attorney]: He's 
come as an expert, Your Honor, and this 
is cross-examination.

"MR. SCHATZ: If the Court please, 
though there is an instruction that will 
be given as the Court well knows, and as 
Mr. Axley knows that would cover that 
event should it come up.

"THE COURT: I'm going to overrule 
you, Mr. Schatz.

"BY MR. AXLEY (Continuing Cross- 
examination) :

"Q. Would you answer that? Do you 
want me to ask it again?

"A. I know that I would be reluctant 
to release him today, because I feel hê  
has a serious sexual problem, and I don't 
think he has received the treatment for 
that problem in the past, and I think he 
does need the treatment for that problem.
And, I think if he does not receive the 
treatment for that problem, the odds are 
that he would get involved in this sexual behavior again, unless he was treated for 
it."

590 S.W.2d at 932. (Emphasis added.)
The Tennessee Supreme Court reversed the defendant's 

rape conviction, relying on a previous case that held

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84-309, 84-310

impermissible a prosecutor's comment in closing argument to 
the effect that "the defendant could 'go right out of here 
and kill again."’ 590 S.W.2d at 933 (quoting Covey 
State, 504 S.W.2d 387, 393 (Tenn. Crim. App. 1973)). The 
court decided that this kind of testimony was highly prejudicial 
and "would be even more devastating than the advancement of 
that thesis by the prosecution as in the Covey case, supra." 
Barksdale, 590 S.W. 2d at 933.

We, too, believe that this kind of question is unfairly 
prejudicial to the defendant. First, the cases cited by the 
State do not support the proposition that an expert may be 
questioned on the future conduct of a defendant. Therefore, 
there was no proper basis for the district attorney to ask 
such a question. Second, the central issue in the guilt 
phase of a capital murder trial is whether the State has 
satisfied its burden of proving beyond a reasonable doubt 
that the defendant is guilty of the crime charged. Beck,
396 So.2d at 662. This kind of question could have easily 
shifted the focus of the jury's attention to the issue of 
punishment, which is an improper consideration at the guilt 
phase of the trial.

For these reasons, the defendant's conviction for the 
capital murder of two persons is reversed and this cause 
remanded to the Court of Criminal Appeals for that court to 
order a new trial.

REVERSED AND REMANDED.
2Torbert, C.J., and Faulkner, Jones, Almon, Shores,

2Beatty, Adams, and Houston, JJ., concur.
Maddox,2 J-, dissents.

2Although these justices did not sit at oral argument, 
they have listened to the tape of oral argument.

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83-309, -310Ex parte Jerome Vincent Berard

MADDOX, JUSTICE (Dissenting)
I must respectfully dissent from 

concludes that the trial court erred 
attorney to ask Dr. Chester Jenkins, 
defendant, whether the defendant's

the majority opinion, which 
in permitting the district 
a psychiatrist hired by the 
"latent schizophrenia" could

recur.
As the majority opinion correctly states, there is limited 

authority on the exact question presented, but I believe that our 
evidentiary rule, which allows a searching cross-examination of 
witnesses, should be applied in this case. In fact, because of 
the questionable reliability of expert testimony involving mental 
disorders, I believe the searching cross-examination rule is 
uniquely applicable to the testimony of psychological experts.

In a comment in the Maryland Law Review, the author examines 
the history and the development of the use of the psychologist as 
an expert witness and suggests that the reliability of expert
testimony is suspect. He writes:

"Studies of the reliability of 
psychological diagnoses are rare; however, a 
number have been conducted regarding 
psychiatric diagnoses. In a review of six 
major studies of the reliability of 
psychiatric diagnosis conducted between 1956 
and 1975, two researchers calculated 
interrater reliability, correcting for change 
agreement. Summarizing their results, they 
concluded:

"'There are no diagnostic 
categories for which reliability is 
uniformly high. Reliability appears to 
be only satisfactory for three 
categories: mental deficiency, organic 
brain syndrome (but not its subtypes), 
and alcoholism. The level of reliability is no better than fair for 
psychosis and schizophrenia and is poor 
for the remaining categories.'

"The authors also observed that in five of 
the six studies the diagnosticians were of 
similar background, and in some instances, 
special efforts were made to have the 
participants arrive at some consensus on 
diagnostic principles prior to beginning the 
research -- factors that should have

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83-309, -310

increased interrater reliability. Contrary 
to their expectations, however, these 
elements did not significantly contribute to 
high reliability. They theorized: 'One can
only assume ... that agreement between 
heterogeneous diagnosticians of different 
orientations and backgrounds, as they act in 
routine clinical settings, is even poorer 
than is indicated in this review.' Their 
study also revealed no essential change in 
diagnostic reliability over time. The 
authors' conclusion was less than sanguine 
about the reliability of psychiatric 
diagnoses:

"'The reliability of psychiatric 
diagnosis as it has been practised since 
at least the late 1950's is not good. 
It is likely that the reasons for 
diagnostic unreliability are the same 
now as when Beck et al. (1962) studied 
them. They found that a significant 
amount of the variability among 
diagnosticians was due to differences in 
how they elicited and evaluated the 
necessary information, and that an even 
larger amount was due to inherent 
weakness and ambiguities in the 
nomenclature.'

"Overall interrater reliability for specific 
diagnoses ranges from about thirty-two 
percent to sixty-three percent agreement, 
which means that psychiatrists tend to 
disagree on specific diagnoses a significant 
percentage of the time. To date, there are 
no studies that demonstrate that the rate of 
agreement among psychologists is any better 
or worse than that of psychiatrists. One 
danger arising from such a lack of 
reliability is that patients 
inappropriately classified;
classifications may then directly 
the type of treatment they receive

may be 
these 

influence

"Despite a salutary trend toward the 
creation of an empirically based 
nomenclature, the accuracy of psychological 
diagnoses based thereon may still be suspect. 
If the specific criteria for inclusion in a 
particular diagnostic category remain too 
subjective, then their value as the basis for 
an operational nomenclature may be 
significantly diminished. For example, if 
one element for inclusion in a diagnostic 
category is evidence of memory impairment, the individual psychologist's concept of the 
degree of impairment necessary for inclusion 
may vary widely. Second, patients with a 
few, but not all, of the symptoms necessary 
for a particular diagnosis, or who manifest 
symptoms that are not discrete but overlap 
significantly, may be placed temporarily 
or permanently depending upon the combination 
of symptoms observed in the residual category of 'undiagnosed psychiatric 
illness.' The implication is that an 
individual may be labeled mentally

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83-309, -310

disordered, albeit tentatively, even though a 
specific diagnostic category does not exist.
Such flexibility may lead to
overinclusiveness. Finally, depending on how 
carefully the symptom criteria are drafted, 
they still may not account for the relative 
frequency of such behavior in 'normal'
populations."

Comment, The Psychologist as Expert Witness, 38 Md. L. Rev.
577-81 (1979).

The author concludes:
"The probative value and admissibility 

of each level of psychological testimony is 
suspect. Although psychological expert 
witnesses may be properly qualified in terms 
of their education and experience, these 
criteria do not assure that the scientific 
underpinnings of such testimony are valid. 
Psychological judgments are not as accurate 
as the courts presume them to be, and diagnoses based upon a psychologist s 
observations are, at the very least, 
questionable. For reasons that remain
obscure, the courts have failed to apply to 
psychology the standard used to evaluate the 
admissibility of novel types of scientific 
evidence. Because the courts have tacitly 
taken judicial notice of psychology as a bona 
fide scientific discipline, there is no 
opportunity at trial to assail the underlying 
accuracy of such judgments in terms of their 
reliability and validity.

"Psychological expert testimony should 
be excluded or at least severely curtailed 
for two reasons. First, psychological 
diagnoses may not be reasonably accurate 
accuracy greater than chance and,
consequently, cannot meet the prima facie 
showing of logical relevancy. Those
judgments that are reasonably accurate should 
be admitted subject to the usual course of 
rigorous cross-examination. Second, even if 
psychological diagnoses are reasonably
accurate, psychological expert testimony 
should be excluded because such evidence 
cannot meet the higher standard of accuracy 
required by the courts in light of the evidentiary counterweights, and the jury is 
likely to exaggerate its significance given 
its aura of scientific objectivity. 
Psychological opinion testimony regarding the 
causal connection between a mental disorder 
and criminal or tortious conduct -- the issue 
of ultimate fact -- should be excluded on 
similar grounds, at least until it can be 
satisfactorily demonstrated that
psychologists possess special expertise in 
evaluating the relationship between the 
scientific 'fact' of mental disorder and the 
applicable legal standard. The test should 
be whether such an opinion would be more 
helpful to the trier of fact than the

539,

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83-309, -310

thoughtful opinion of the average layperson."
Id. at 598-99.

Although I disagree with the author of the article in the 
conclusion that psychological expert testimony should be 
excluded, I do agree that when it is admitted it should be 
subject to "the usual course of rigorous cross-examination."

Why was this rigorous cross-examination proper in this case? 
Dr. Jenkins's conclusions were diametrically opposed to those of 
the State's expert, and during cross-examination Dr. Jenkins 
admitted that the defendant did not meet the definition of 
"latent schizophrenia" contained in the American Psychiatric 
Association's Diagnostic and Statistical ManuaI — *
Consequently, the district attorney's questions about the
likelihood that the defendant would have a recurring episode of 
what Dr. Jenkins classified as "latent schizophrenia," including 
another psychotic episode in which he might shoot someone, were 
relevant to an understanding of the "latent schizophrenia" label 
Dr. Jenkins was using to diagnose the defendant. Questions about 
the nature and symptoms, and especially the duration of the 
illness, were certainly relevant and material to an understanding 
of Dr. Jenkins's diagnosis and the conclusions he drew from it. I 
am of the opinion that the cross-examination of Dr. Jenkins was 
very relevant in testing the reliability of Dr. Jenkins's opinion 
about the mental state of the defendant at the time he committed 
the offense; therefore, I must respectfully dissent.

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