Anderson v. State

• Decision Date: 08 May 1998
• Docket Number: No. CR-95-0768.,CR-95-0768.
• Citation: 729 So.2d 900
• Parties: Terry ANDERSON v. STATE.
• Court: Alabama Court of Criminal Appeals

729 So.2d 900

Terry ANDERSON v. STATE.

No. CR-95-0768.

Court of Criminal Appeals of Alabama.

May 8, 1998.

Opinion Overruling Rehearing August 28, 1998.

Certiorari Denied February 19, 1999.

Michael Carl Shores, Birmingham, for appellant.

Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for appellee.

Alabama Supreme Court 1972213.

LONG, Presiding Judge.

The appellant, Terry Anderson, was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975. He was sentenced to life in prison.

Anderson, who was 17 years old at the time of the offense, contends that the trial court erred by denying his motion to suppress his custodial statement to police because he was not informed before making the statement that he had a right to communicate with his parent or guardian, as provided in Rule 11(B)(4), Ala.R.Juv.P.

Rule 11(B), Ala.R.Juv.P., enumerates the rights of a child who is in custody but has not yet been questioned (the so-called "SuperMiranda" rights).¹ It provides as follows:

"Before the child is questioned about anything concerning the charge on which the child was arrested, the person asking the questions must inform the child of the following rights:

"(1) That the child has the right to counsel;

"(2) That if the child is unable to pay a lawyer and if the child's parents or guardian have not provided a lawyer, one can be provided;

"(3) That the child is not required to say anything and that anything the child says may be used against the child;

"(4) That if the child's counsel, parent, or guardian is not present, then the child has a right to communicate with them, and that, if necessary, reasonable means will be provided for the child to do so."

Subsections (1), (2), and (3) of Rule 11(B) are "substantially the same as the warnings required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)." Ex parte Whisenant, 466 So.2d 1006, 1007 (Ala.1985). "In addition to the standard Miranda warnings, [subsection (4) mandates that] a juvenile must also be informed that he can communicate with a parent or guardian." Ex parte Whisenant, 466 So.2d at 1011 (Torbert, C.J., concurring in pertinent part). This court has long recognized the importance of affording children the additional right in Rule 11(B)(4):

"Informing the child of his right to communicate with a parent or guardian serves two important purposes. First, `[t]his simple warning will give the juvenile the opportunity to obtain the guidance necessary in order for him to evaluate his rights.' Ex parte Whisenant, 466 So.2d at 1012. (Torbert, C.J., concurring in pertinent part). Secondly, the rule recognizes that `the parent or guardian may be the conduit through which the juvenile secures an attorney.' Id."

Payne v. State, 487 So.2d 256, 259 (Ala.Cr. App.1986),

quoted in L.J.V. v. State, 545 So.2d 240, 245 (Ala.Cr.App.1989).

"`The rationale of courts holding a child's request to see a parent equivalent to a request to see an attorney, ... is that, while an adult in trouble normally requests an attorney's assistance, a child logically expresses his desire for help and his unwillingness to proceed alone by requesting a parent's presence.... [I]n the case of a child, the right to assistance of counsel is hollow unless a parent is present, for a parent is normally the child's only avenue through which to evaluate and exercise the right to counsel.'

"[Samuel M. Davis, Rights of Juveniles § 3.13 at 3-64.5 (2d ed.1991)]."

E.C. v. State, 623 So.2d 364, 368 (Ala.Cr.App. 1992).

The incident in question, the shooting death of Montrell Tall, occurred on the afternoon of April 26, 1994. That evening, Birmingham police arrested Anderson and transported him to the station house, where he was questioned about his involvement in the shooting. Before being questioned, Anderson was informed of, and waived, the standard constitutional rights set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). However, it is undisputed that Anderson was not informed that he had a right to communicate with his parent or guardian, as provided in Rule 11(B)(4), Ala.R.Juv.P. Anderson subsequently gave police a statement and answered their questions without contacting a lawyer or his parents and without having either a lawyer or his parents present. Anderson's statement, which the police recorded on audiotape, was the subject of a motion to suppress at his trial for the murder of Tall. The trial court denied Anderson's motion to suppress, and the audiotape containing his statement (State's Exhibit 14) was admitted into evidence and played for the jury during the state's case-in-chief.

In Ex parte Whisenant, supra, 466 So.2d 1006, the Alabama Supreme Court held that the traditional exclusionary rule is applicable to all the provisions of what is now Rule 11(B), Ala.R.Juv.P. The Supreme Court further held that if any of the warnings set out in Rule 11(B) are omitted before custodial questioning takes place, including the warning that the child has the right to communicate with a parent or guardian, "the use in evidence of any statement given by the child is constitutionally proscribed." Id. at 1007. See also C.M.B. v. State, 594 So.2d 695 (Ala. Cr.App.1991); M.B.M. v. State, 563 So.2d 5 (Ala.Cr.App.1989); Chambers v. State, 497 So.2d 607 (Ala.Cr.App.1986).

In denying Anderson's motion to suppress his statement, the trial court ruled that it was sufficient, for purposes of admissibility, that Anderson had been informed of and had waived the standard Miranda rights before giving the statement. In so ruling, the trial court accepted the state's argument that Rule 11(B)(4) did not apply to Anderson because of the enactment of § 12-15-34.1, Ala. Code 1975, 12 days before the offense was committed.² Section 12-15-34.1 automatically removes from the jurisdiction of the juvenile court a juvenile age 16 or over who is alleged to have committed any one of certain enumerated serious offenses. See § 12-15-34.1(a)(1) through (6), Ala.Code 1975. These offenders are now treated as adults.

For purposes of Anderson's case, the pertinent portions of § 12-15-34.1 provide:

"(a) Notwithstanding any other provision of law, any person who has attained the age of 16 years at the time of the conduct charged, which if committed by an adult would constitute any of the following, shall not be subject to the jurisdiction of juvenile court but shall be charged, arrested, and tried as an adult:

". . . .

"(2) A Class A felony.

"(3) A felony which has as an element thereof the use of a deadly weapon.

"(4) A felony which has as an element thereof the causing of death or serious physical injury."

The offense for which Anderson was charged clearly met several of the criteria for automatic removal under § 12-15-34.1, and the record supports Anderson's removal from the juvenile system and placement within the jurisdiction of the adult system under § 12-15-34.1: Anderson was 17 years old at the time of the alleged offense and when he was taken into custody; he was charged with the Class A felony of murder (see § 13A-6-2(c), Ala.Code 1975); and the victim was shot to death with a handgun. However, we cannot agree with the state that the rights granted to Anderson under Rule 11(B) were extinguished merely because he was alleged to have committed one of the serious offenses enumerated in § 12-15-34.1, which resulted in his automatic placement within the jurisdiction of the adult system.

In Ex parte Jackson, 564 So.2d 891 (Ala. 1990), the Alabama Supreme Court addressed the admissibility in an adult criminal prosecution of the custodial statement of a juvenile where the police, before obtaining the statement, had failed to inform the juvenile of his right under what is now Rule 11(B)(4) to consult with his parents. In holding that the juvenile's statement should have been suppressed in the criminal prosecution, the Supreme Court expressly rejected the state's argument that the trial court's determination that the juvenile was to be tried as an adult "cured" any error committed when the juvenile was not advised of his right to consult with his parents. Ex parte Jackson, 564 So.2d at 893. The Supreme Court's holding in Ex parte Jackson made clear that the exclusionary rule is equally applicable whether the state seeks to admit a juvenile's custodial statement at a transfer hearing in the juvenile court, see Ex parte Whisenant, supra, 466 So.2d 1006, or at a criminal prosecution of the juvenile in the circuit court. Although a juvenile being tried in the circuit court may otherwise be treated as an adult, "[p]ublic policy, in addition to the constitutional requirements," supports the requirement that the juvenile be informed of his or her rights pursuant to Rule 11(B)(4). See Ex parte Jackson, 564 So.2d at 893.

Although Rule 11(B) is part of the Alabama Rules of Juvenile Procedure, "which govern the procedure for all matters in the juvenile court," Rule 1(A), Ala.R.Juv.P., it contains no limitation mandating its applicability only to proceedings in the juvenile court. Indeed, the holding in Ex parte Jackson clearly established that Rule 11(B) applies, in certain cases, to proceedings in the circuit court. The admissibility of extrajudicial statements by juveniles are subject to "the requirements of the Constitution and the prevailing case law as expressed by the appellate courts." Rule 21, Ala.R.Juv.P. Since Ex parte Jackson, this court has consistently recognized that the rights set forth in Rule 11(B), Ala.R.Juv.P., apply to juveniles regardless of which forum they may find themselves in—the juvenile court or the circuit court—and we have set aside convictions where custodial statements by juveniles obtained in violation of Rule 11(B)(4) were admitted in evidence at the criminal prosecutions of juveniles. See Smith v. State, 623 So.2d 369 (Ala.Cr.App.1992), cert. denied, 510 U.S. 1030, 114 S.Ct. 650, 126 L.Ed.2d 607 (1993); and Weaver v. State, 710...