Allen v. State
| Decision Date | 02 October 1979 |
| Docket Number | 3 Div. 71 |
| Citation | 375 So.2d 550 |
| Parties | John ALLEN, Jr. v. STATE. |
| Court | Alabama Court of Criminal Appeals |
George E. Hutchinson of Kirk, Hutchinson & Carroll, Montgomery, for appellant.
Charles A. Graddick, Atty. Gen., and George Hardesty, Jr., Sp. Asst. Atty. Gen., for appellee.
Appellant was tried on a two-count indictment, one count charging that he burglarized a "shop, store or warehouse of C. D. Clark and Fannie E. Clark, d/b/a Clark's Clothing Co.," and the other charging him with grand larceny of several items of personal property of C. D. Clark and Fannie Clark, "d/b/a Clark Clothing Company," from a storehouse, warehouse, shop or office. In the course of the deliberations of the jury they made it known to the court that they had agreed on a verdict as to the grand larceny count but not as to the burglary count. The burglary count was then nol-prossed and the jury returned a verdict finding defendant guilty of grand larceny. The court sentenced him to imprisonment for ten years.
A major contention of appellant is that the court erred in not suppressing and in admitting the confession of the defendant.
According to the emphatic testimony of the defendant himself, his signed confession was not admissible. In his testimony, defendant makes a charge of gross misconduct on the part of the officers who obtained his confession. Defendant did not deny that he signed it, but he said that he did so by reason of violence that had been inflicted upon him and fear that he would be more seriously injured if he did not sign the confession. He also testified that the confession was not true. The confession 1 signed by him is as follows:
In contrast with the signed confession, defendant testified that he could not read or write, but that he could and did sign his name. He said that one of the officers beat him badly before he was confronted with the statement, that "he kept on beating me," even after he had told the officer that he didn't want to sign any statement and that he wanted someone to get him his lawyer, naming him. He said that he did not give the officers the names of the three whose names are found in the confession.
According to the testimony of defendant, he was in the vicinity of the store about 1:00 of the night of the burglary thereof, noticed that the store had been broken into and saw four white boys at the store, who disappeared behind a nearby filling station and fire station about the time officers arrived. He said he did not know any of the white boys. He denied having been given any statements or warnings as to his constitutional rights, a typed statement signed by him to the contrary notwithstanding.
The officers charged by defendant with misconduct were as emphatic in their denial thereof in their testimony as was defendant in his charge. According to their testimony, he was given complete instructions and warnings as to his constitutional rights against self-incrimination and his right to an attorney without cost to him, he was not mistreated in any way and defendant's confession was made without any actual or threatened violence. According to their testimony, there was no semblance of any coercion and the confession was understandingly and voluntarily given.
Perhaps no human being, other than the defendant and the particular witnesses, knows with certainty who was testifying truthfully and who was testifying falsely, but no one is in a better position to determine that question than the trial judge who observed the witnesses as they gave their testimony. Although the evidence may present the possibility of an erroneous determination by him, it is insufficient to justify such a conclusion on appeal.
Three witnesses called by the defendant testified that a day or two after his arrest there were knots, skinned places and bruises on him. An officer, a witness for the State, testified that when he saw defendant coming out of the front door of the burglarized store, defendant started running, ran into a parking sign and fell. He said that when defendant did so, he dropped a stereo cover that he was carrying at the time.
Appellant poignantly complains of what he terms, "the tone and atmosphere established" by the trial court on the hearing of defendant's motion to suppress the confession. Difficult though it is for us to portray from the record the "tone and atmosphere" in such a way as to be fully understandable, we will endeavor to show what we consider the substance of the basis of appellant's grievance in this respect. After a jury had been duly selected to try the case and the jury had been sworn, one of defendant's two attorneys indicated to the court that he could like to present a matter out of the presence of the jury. Thereupon the following occurred:
Thereafter, the record shows about a two-page colloquy among the court and counsel for the parties largely with respect to when Mr. Hutchinson would be there and whether defendant and counsel would agree that the jury not be kept together during the trial. Thereupon, the jury was returned to the courtroom and informed by the court that there would be a brief recess. The record then continues:
Defendant was then sworn as a witness and upon direct examination was shown the typed confession and stated that he could not read but that he could read his name signed thereto. The court then questioned him as shown by the remainder of the record as to his testimony on the Motion to Suppress:
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Stoudemire v. State
...Lloyd v. State, 293 Ala. 410, 412, 304 So.2d 235, 236 (1974); Player v. State, 421 So.2d 1338, 1343 (Ala.Cr.App.1982); Allen v. State, 375 So.2d 550, 555 (Ala.Cr.App.1979); Hunter v. State, 38 Ala.App. 351, 357, 83 So.2d 737, 741 The judgment of the circuit court is affirmed. AFFIRMED. All ......