Allen v. State

• Citation: 53 Ala.App. 66,297 So.2d 391
• Decision Date: 09 April 1974
• Docket Number: 7 Div. 217
• Parties: John Earl ALLEN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 391

297 So.2d 391

53 Ala.App. 66

John Earl ALLEN v. STATE.

7 Div. 217.

Court of Criminal Appeals of Alabama.

April 9, 1974.

Rehearing Denied May 21, 1974.

Robert Benham, Cartersville, Ga., Solomon Seay, Jr., Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Sarah M. Greenhaw, Asst. Atty. Gen., for the State.

CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of a charge of murder in the second degree, as included in an indictment for murder in the first degree, and a sentence of imprisonment in the penitentiary for a term of fifty years.

On the night of June 15--16, 1972, Robert Brewster was killed at his home in Cedar Bluff, Alabama. There was testimony that his death was a result of his being stabbed in the chest with a sharp instrument.

Mrs. Sybil Brewster, daughter-in-law of deceased, who lived in his home, testified that she retired about 11:00 P.M. June 15 and was awakened by some noise; a man was standing at the foot of her bed; she identified him as the defendant and described him as a 'slim colored man.' She testified as to a struggle or fight with the man and that she fled from the house, went to a neighbor's home and asked the neighbor to 'see about Mr. Brewster,' who had been sleeping in a room that adjoined the room in which she had been sleeping.

A neighbor, a great-nephew of deceased, testified that after midnight of the same night Mrs. Sybil Brewster came to his home; she had blood all over her; they had a conversation, and he went to the home of deceased, but before he arrived there he saw somebody come out of the back door, whom he did not recognize. He went into Mr. Brewster's house and observed Mr. Brewster, who was still breathing and had 'blood all over his chest.' He next 'went and called an ambulance.' He testified that deceased was 'a bootlegger,' that he had been one for a long time and that 'people frequently came to his house, negroes and white people, at all hours of the day and night' and that they 'came there late at night.'

Mrs. Geneva Moten, another witness for the State, testified that on the night involved, after she and her husband had gone to sleep, the defendant came to her home and asked her husband to 'carry him to Chattanooga,' which her husband declined to do.

After 1:00 A.M. of June 16, the officers went to the house in which defendant was residing with his mother and arrested him. He had gone to bed. A jacket that he had taken off was observed and, with other clothes, was taken into possession by the officers and brought to the office of the Sheriff of Cherokee County. In the jacket was a knife of two blades. The jacket and the knife were turned over to Mr. Brent Wheeler of the State Department of Toxicology, who testified that he found 'what appeared to be a blood stain' on the knife and a 'single hair, embedded in the handle portion of the knife,' which he compared with a 'known hair sample from the head of Robert Brewster, but made no determination or finding.' He testified that the jacket 'had evidence of what appeared to be blood stains on the front portion and on both sleeves.' The witness further testified that he was unable to reach a conclusion as to what type of blood or blood stains were on the jacket or 'under what circumstances it was there.'

Insistences of error are based upon rulings of the trial court in admitting in evidence, over the objection of defendant, the jacket and knife and testimony with reference to them, some incriminating statements said to have been made by defendant to the officers after his arrest and while they were taking him to the sheriff's office and an admission or confession said or have been made by defendant to one A. D. Small approximately three weeks after defendant was arrested and while he was in the Cherokee County jail.

In brief of counsel for appellant the issues are defined as follows:

'(1) Whether evidence which is the product of an unlawful search and seizure should be admitted into the trial of a case if the defendant timely objects to its admission?

'(2) Whether confessions and incriminating statements obtained from a defendant in violation of constitutional rights are by virtue of their unconstitutionality inadmissible during the trial of a case.'

The answers to (1) and (2) are necessarily in the negative and in the affirmative respectively, but in the development of the questions, appellant's counsel presents further, related questions as follows:

(1) Whether evidence as to the jacket and knife was the product of an unlawful search and seizure, and

(2) Whether incriminating statements and a confession obtained from the defendant were obtained in violation of his constitutional rights.

As to (1), we do not find that the evidence involved, the jacket and knife and testimony pertaining to them, was the product of an unlawful search and seizure. There was some evidence that it was, which is contained in the testimony of the defendant and his mother. On the other hand there was strong evidence that there was no violation of the constitutional rights of the defendant as to the jacket and knife, consisting of testimony of the officers to the effect that they made no search whatever of any part of the house, that the jacket, as well as other clothes of defendant, was in plain view, while the officers were in the house with the clear consent of the mother of defendant and defendant himself, that there was no seizure whatever of the clothing, particularly the jacket in which knife was afterwards found, that possession of them by the officers was with the express consent of defendant, and that, as found by the trial court after a consideration of testimony taken out of the presence of the jury, the defendant 'voluntarily and understandingly relinquished possession . . . without a search of the premises by the officers.' Although not all of the testimony relative to the circumstances of the arrest of defendant at his home is free of conflict, it justifies the conclusion that there was no oppression, deception, or intimidation on the part of the officers. There was no evidence of any force exerted against him other than that one of the officers 'grabbed' defendant, according to his mother, when the officer handcuffed him.

The action of the trial court in admitting in evidence the jacket and knife and testimony relative to them was not erroneous. Such a conclusion was reached in Martz v. State, 52 Ala.App. 200, 290 So.2d 661 (1974), cert. denied, 292 Ala. 204, 290 So.2d 665, in which strikingly similar circumstances, except as to the claimed intoxication of defendant discussed immediately hereinafter, were involved.

There seems to be no doubt that appellant had been drinking at the time of his arrest, but there was positive testimony that he 'wasn't drunk,' and it is clear from the record that it cannot be said that he 'was in an intoxicated condition amounting to mania or such impairment of mind and will as to make him unconscious of the meaning of his words,' which in such or similar language has been the determinant of whether one's confession, if otherwise admissible, should be admitted in evidence. Johnson v. State, 51 Ala.App. 172, 283 So.2d 624, Ray v. State, 39 Ala.App. 257, 97 So.2d 594, Smith v. State, 25 Ala.App. 297, 145 So. 504. The test is equally applicable to whether one's consent is voluntarily and understandingly given.

One of the incriminating statements made by defendant while he was in custody the night of Mr. Brewster's death was stated by one of the witnesses as follows:

'He said he went to Mr. Bob Brewster's alone, and walked up on the porch there and he heard a groaning sound inside. He opened the door and went in and he turned a light on, and Mr. Bob Brewster was on the bed and he had blood on him, and he tried to help him, and then he got scared and ran.'

The witness further said that the defendant stated that he did not hurt Bob Brewster in any way. Objections were made by defendant to the quoted statement, as well as other incriminating statements, and it was contended on the trial, and is contended now, that such in-custody statements should not have been admitted in evidence. Defendant relies upon Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and urges in addition that no probable cause was shown, without which the warrantless arrest was illegal.

As to Miranda, it is our view that defendant was fully advised of his right to remain silent and not incriminate himself and of his right to counsel, that after being adequately warned he voluntarily and understandingly waived such rights, and that there was no collision whatever between the ruling of the court in this respect and the requirements set forth in Miranda.

As to the contention that any lack of probable cause for the arrest precluded the admission of evidence of a confession or incriminating statement, we must hold to the contrary, in the light of Logan v. State, 291 Ala. 497, 282 So.2d 898, in pertinent part as follows:

'In Loyd v. State, 279 Ala. 447, 186 So.2d 731, this court said:

'We are not advised of any case holding that a confession is inadmissible for the reason that it was made while a defendant was being held after being unlawfully arrested. As we note hereafter, the Supreme Court of the United States has held that evidence obtained as the result of an illegal search is not admissible, but we are not advised that the rule of exclusion has been applied to a confession, which is shown to have been voluntarily made, although the confessing person may have been illegally arrested. We are of opinion that the confession was not inadmissible on the ground that it was made after defendant had been taken into custody by an unlawful arrest.'

'Other recent cases holding the same are Bridges v. State, 284 Ala. 412, 225 So.2d 821(6); Braggs v. State, 283 Ala. 570, 219 So.2d 396(3); Hutto v. State, 278 Ala. 416, 178 So.2d 810(6); Goldin v. State, 271 Ala....