
    Ex parte John Lionel NEAL, Jr. (Re John Lionel Neal, Jr. v. State of Alabama).
    87-1525.
    Supreme Court of Alabama.
    June 16, 1989.
    
      W. Donald Bolton, Jr. and Thack H. Dyson of Foster, Wills, Bolton & Dyson, Foley, for petitioner.
    Don Siegelman, Atty. Gen., and Bryant G. Speed II, Asst. Atty. Gen., for respondent.
   PER CURIAM.

We granted the defendant's petition to consider the question whether, on his motion, he is entitled to a jury trial on the issue of his competency to stand trial for capital murder. We affirm the holding of Ex parte LaFlore, 445 So.2d 932 (Ala.1983), that the criminally accused, pursuant to Ala. Const, of 1901, § 11, and the procedure provided by Ala. Code 1975, § 15-16-21, is entitled to a jury trial on the issue of mental competency to stand trial; thus, we reverse the Court of Criminal Appeals’ “no opinion” denial of the defendant’s petition for writ of mandamus.

In so holding, however, we are not to be understood as voiding the trial court’s exercise of its discretion to order the defendant committed to a state hospital pursuant to § 15-16-22. We hold simply that the statutory discretion afforded the trial court to seek a psychiatric examination of the accused may not be substituted as an alternative determination in deprivation of the defendant’s constitutional right to a jury trial on the issue of competency to stand trial. See Seibold v. Daniels, 337 F.Supp. 210 (M.D.Ala.1972).

REVERSED AND REMANDED.

HORNSBY, C.J., and MADDOX, ALMON, ADAMS and STEAGALL, JJ., concur.

JONES and HOUSTON, JJ., concur specially.

KENNEDY, J., dissents.

HOUSTON, Justice

(concurring specially).

Certainly, under Ex parte LaFlore, 445 So.2d 932 (Ala.1983), one who is criminally accused is entitled to a jury trial on the issue of his mental capacity to stand trial; and I do not hesitate to vote with the majority to reaffirm LaFlore.

I concur specially to emphasize what the majority of this Court is not doing: by reversing and remanding, the opinion does not allow one charged with capital murder to go before a jury to determine his mental competence to stand trial, without permitting the State to have him examined by professionals who can give an opinion as to his present competency.

I am not persuaded that the Alabama Constitution of 1901 affords the accused a jury trial on the issue of his present competence and at the same time precludes the State from preparing its case to meet this issue. The people of Alabama ordained and established the Constitution “in order to establish justice” {Preamble). If we allow one criminally accused to demand a jury trial on the issue of his sanity to stand trial, without affording the State an opportunity to have the accused examined so that the State can introduce evidence to refute or substantiate the allegation of the accused’s present defective mental condition, then we are promulgating a system that would not “establish justice” but would make a shambles of justice.

The ultimate issue, it seems to me, is whether it would violate the criminally accused’s constitutional rights to permit the same professionals, at the time they examine the accused for purposes of determining his present mental condition, to be permitted to examine him to determine his mental condition at the time of the alleged commission of the offense or offenses for which he has been indicted, when the accused has not pleaded not guilty by reason of insanity or mental disease or defect. I understand and appreciate the economics of doing this. However, I fear that this could violate the accused’s constitutional rights, and I would not permit this unless the accused has pleaded not guilty by reason of insanity or mental disease or defect. The establishment and maintenance of justice are not cheap.

JONES, J., concurs.  