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State v. Durham7/26/1999
than his own self was really."
In light of the appellant's complete dependence upon his wife and his realization of his permanent separation from his wife, Dr. Wishart opined that the appellant would not have been sufficiently rational to coolly and calmly premeditate and deliberate the killing of his wife. He explained:
" his is an extremely insecure anxious man who cannot think clearly and cannot do things on his own, and he developed an extreme anxiety and dependency disorder over time to the point that he was excessively reliant on his wife for his psychological welfare, and given how much that he depended on her to get by on a daily basis, my -- my opinion is that he would not be able to fathom her not being on this earth, say nothing about taking her life himself, in any kind of rational state."
Dr. Wishart additionally concluded that the appellant's ingestion of alcohol and Valium would have impaired his ability to control his emotions on the night of the murder. He asserted that, at the time of the murder, the appellant was overwhelmed with emotions and "out of control of his thinking."
The appellant testified on his own behalf. He recounted that he and his wife separated in August 1996 after he began accusing his wife of having an affair. The appellant stated that he began to suspect his wife's infidelity following a telephone conversation with his daughter, Sherry Whaley. Ms. Whaley was angry with her mother, because Mrs. Durham had struck her during an argument about Ms. Whaley's current boyfriend. Ms. Whaley suggested to her father that her mother was "no angel herself" and further suggested that he should follow Mrs. Durham and observe her activities. The appellant testified that he later spied upon his wife at her workplace and observed her talking with a man through the window where customers pay for gas. His wife's subsequent departure and petition for an order of protection further strengthened the appellant's suspicions. He also stated that, after the separation, an acquaintance told him that his wife was "partying" with co-workers.
The appellant testified that he ultimately became convinced that his wife was in fact having an affair with a man she had dated in high school. He asserted that his wife had been promiscuous prior to their marriage and that, at the time of the murder, he believed that she was again engaging in promiscuous behavior. Following the separation, he attempted to discuss his wife's alleged infidelity with his daughter, Ms. Whaley, but she refused to talk about her prior accusation. On the morning of the murder, Ms. Whaley told her father, "Daddy, just forget about that. I didn't mean nothing by it."
The appellant conceded that, on the basis of these facts, a reasonable person would not have believed that his wife was having an affair. Nevertheless, the night before the shooting, the appellant called his wife and again inquired if she was having an affair. Mrs. Durham hung up the telephone. The appellant testified that his wife's reaction confirmed his suspicions. He also stated that he realized at that time that Mrs. Durham was not returning home.
The appellant admitted at trial that he drank "a lot and pretty periodically," and that, following his separation from his wife, he began drinking more. However, he denied Mrs. Durham's other allegations in the petition for an order of protection. The appellant stated that he could not understand why his wife had left and admitted that, after the issuance of the order of protection, he called his wife several times and asked her to return home.
The appellant began the day of the murder at home, listening to the radio in the kitch
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