Ard v. State, 7 Div. 609
| Citation | 362 So.2d 1320 |
| Decision Date | 03 October 1978 |
| Docket Number | 7 Div. 609 |
| Parties | Larry Joe ARD, alias v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Kermit M. Downs, Gadsden, for appellant.
William J. Baxley, Atty. Gen. and J. Anthony McLain, Asst. Atty. Gen. for the State, appellee.
Robbery; sentence: sixty years imprisonment.
The evidence establishes that on November 23, 1977, the appellant robbed the Quick Shop in Attalla, Alabama. During the course of that robbery, the appellant also robbed an employee of that business, Mildred Mae Brown. After taking the money from the cash register and from Mrs. Brown's purse, he forced her into the back room of the store and attempted to rape her. During the course of the attempted rape, she was beaten severely and suffered a broken rib and a broken finger. Approximately $327 was taken in the robbery.
Appellant contends that a confession he made to police officers was erroneously admitted into evidence. On voir dire examination, the appellant testified that police officers threatened him and also promised him probation if he would confess to the crime. Thus, he contends that his statement to the officers was involuntary.
Where a threat is such that through fear an accused was likely to have told an untruth, a confession should be excluded. Likewise, any inducement of profit, benefit, or melioration held out (either collateral or directly relating to the offense under inquiry) is enough to render a confession inadmissible. Ex parte Holt, Ala., --- So.2d ---- (Ms. August 4, 1978, SC 77-150); O'Tinger v. State, Ala.Cr.App., 342 So.2d 1343 (1977).
Although the appellant testified that he had been threatened and that inducements were made to him in order to obtain the confession, other evidence to the contrary was admitted. Don Longshore, an investigator with the Etowah County Sheriff's Office, testified that he read the Miranda warning to the appellant before the questioning began. The appellant signed a waiver of counsel, and Officer Longshore testified that neither he nor anyone in his presence promised the appellant or his family any hope of reward or anything of value to obtain the confession. He stated that neither he nor anyone in his presence threatened or coerced the appellant in any way and that the confession was freely and voluntarily given by the appellant.
On numerous occasions, this court has recognized that conflicting evidence is often presented on a question of the voluntariness of a confession. In each such instance where the trial judge found the confession to have been voluntarily made, great weight was given to that finding. We have repeatedly said that such a finding will not be disturbed on appeal unless we are convinced that the conclusion reached by the trial judge was palpably contrary to the weight of the evidence. Smith v. State, Ala.Cr.App., 346 So.2d 382, cert. denied, Ala., 346 So.2d 385 (1977).
Likewise, this court stated in McNair v. State, 50 Ala.App. 465, at 470, 280 So.2d 171, 176 (1973) cert. denied, 291 Ala. 789, 280 So.2d 177:
". . . Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial judge need only be supported by substantial evidence and not to a moral certainty. . . ."
In the instant case, we find the ruling of the trial judge in this regard to have been supported by substantial evidence. The appellant's confession was therefore admitted into evidence without error.
After its deliberations, the jury returned the following verdict "We, the Jury, find the Defendant guilty as charged and sentence him to 60 years in the State penitentiary."
After the trial judge asked the defendant if he had anything to say and received a negative response, the court stated:
"In accordance with the ruling of the Jury, you will be sentenced to the State penitentiary for a term of 60 years. . . ."
The judgment entry reads in pertinent part as follows:
" . . . In accordance with the...
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Morrison v. State
...So.2d 668. Therefore, when conflicting evidence is presented before a trial judge, great weight is given to his findings. Ard v. State, Ala.Cr.App., 362 So.2d 1320. The finding of a trial judge will not be disturbed on appeal unless this court is convinced that the conclusion reached by the......
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Morrison v. State
...So.2d 668. Therefore, when conflicting evidence is presented before a trial judge, great weight is given to its findings. Ard v. State, Ala.Cr.App., 362 So.2d 1320. The finding of a trial judge will not be disturbed on appeal In the instant case, we find that the ruling of the trial judge w......
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Bryson v. State of Ala., 79-3492
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