Ash v. State

• Decision Date: 02 November 1982
• Docket Number: 5 Div. 716
• Citation: 424 So.2d 1381
• Parties: Daniel Ray ASH, Alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1381

424 So.2d 1381

Daniel Ray ASH, Alias v. STATE.

5 Div. 716.

Court of Criminal Appeals of Alabama.

Nov. 2, 1982.

Rehearing Denied Nov. 23, 1982.

Certiorari Denied Jan. 28, 1983

Alabama Supreme Court 82-229.

Thomas E. Jones, Auburn, for appellant.

Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant, Daniel Ray Ash, stands charged with the murder of six-year-old Wendy Michelle Mancil. The defendant was seventeen years old at the time of the crime. Pursuant to Alabama Code Section 12-15-34 (1975), the district attorney filed a motion in the juvenile (district) court to transfer the defendant from juvenile court to circuit court for prosecution as an adult. After a hearing, the juvenile court granted the State's motion and transferred the defendant to the circuit court of Tallapoosa County. The defendant appealed from that order and a trial de novo was had in the circuit court. Rule 28, A.R.J.P. The circuit court rendered judgment granting the State's motion and ordering the case transferred to the circuit court for criminal prosecution.

The defendant contends that his confession was improperly induced and a search of his residence was unconstitutional. He argues that, therefore, evidence of the confession and search was improperly admitted at the hearing on the motion to transfer in order to establish probable cause to believe that he committed the homicide. He argues that without the admission of this illegal and unconstitutional evidence the State failed to establish probable cause.

"The trial court can grant a motion to transfer only after considering the six factors listed in Section 12-15-34(d) and finding that probable cause exists to believe that the allegations are true." Gulledge v. State, 419 So.2d 219 (Ala.1982); Duncan v. State, 394 So.2d 930, 932 (Ala.1981). The circuit court complied with Section 12-15-34(f) and considered the six factors there listed in ordering Ash transferred. ¹ There is no argument to the contrary. The only issue is whether the confession and search were properly considered in establishing probable cause.

A hearing on a motion to transfer involves a probable cause hearing. Duncan 394 So.2d at 932. "Such a hearing is not designed to determine the guilt or innocence of the child accused of the crime, but is instead a hearing to determine whether the child should be transferred out of the juvenile court for criminal prosecution as an adult." Duncan, 394 So.2d at 932. For this reason, the strict standard of proof beyond a reasonable doubt does not apply. Brown v. State, 353 So.2d 1384 (Ala.1978). "The only standard which must be met is whether a reasonable man would believe the crime occurred and that the defendant committed it." Duncan, 394 So.2d at 932.

Since strict rules of evidence do not apply in probable cause hearings and because a transfer hearing does not determine the guilt or innocence of the juvenile, latitude is permitting in admitting evidence in a transfer hearing which would be otherwise inadmissible in a criminal prosecution. Winstead v. State, 371 So.2d 418 (Ala.1979) (A voluntary confession of a defendant is admissible in a transfer proceeding even though no attorney was present at the time the confession was made); Vincent v. State, 349 So.2d 1145 (Ala.1977) (The uncorroborated testimony of accomplice is a sufficient basis for a finding of probable cause); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1970) (The uncorroborated testimony of an accomplice is admissible); Gulledge (Hearsay evidence may properly be considered).

With regard to confessions, statements, searches and seizures involving juveniles, Section 12-15-66(b) provides:

"An extrajudicial statement which would be constitutionally inadmissible in a criminal proceeding shall not be received in evidence over objection. Evidence illegally seized or obtained shall not be received in evidence over objection to establish the allegations against him. An extrajudicial admission or confession made by the child out of court is insufficient to support a finding that the child committed the acts alleged in the petition unless corroborated by other evidence."

Consequently, before evidence of the defendant's confession and the search of his residence could properly be introduced into evidence, over the objection of defense counsel, this evidence must have been constitutionally obtained.

On Saturday morning, May 29, 1982, Wendy Mancil was reported missing. Her body was found three days later on the morning of June 1, 1982. A postmortem examination classified her death as homicide and listed the cause of death as "ligature strangulation". The child's body was found on the property of Rev. and Mrs. Ash, the defendant's parents, and within one mile of her residence.

Mike Sullivan, an investigator with the Alabama Bureau of Investigation, Department of Public Safety, became involved in the investigation of the missing child on Sunday, May 30. At the request of members of the Tallapoosa County Sheriff's Office he began interviewing "the neighbors that lived in that area." Sometime after 2:00 o'clock Sunday afternoon he talked with the defendant for "30 or 45 minutes" at the Carrville Police Department.

After Wendy's body had been found, law enforcement officials (Chief Dan Stalnaker of the Carrville Police Department, Deputy District Attorney Mitchell Gavin and Investigator Wayne Chase with the District Attorney's Office) came to the home of Edgar Lambert, the defendant's father-in-law around 1:00 or 1:30 o'clock on the Tuesday afternoon of June 1st. Investigator Chase told Rev. Martin Ash, the defendant's father, that they wanted to talk to the defendant because he had been the last person to see Wendy alive. Earlier that day, before the police arrived, the defendant and his parents had learned that Wendy's body had been found on the Ash property. One of the law enforcement officials told Rev. Ash that they wanted him to come with them. The defendant and his father were then taken to the Sheriff's Office in the County courthouse.

Rev. Ash testified that Investigator Sullivan advised the defendant of his Miranda rights and afterward the juvenile probation officer "point(ed) out some things." Sullivan stated that he did not give such advice. However, Eddie Lancaster, the Juvenile Probation Officer for Tallapoosa County, testified that he advised both Rev. Ash and the defendant of their rights around 3:00 o'clock P.M. when they signed a notification of rights form.

Rev. Ash testified that when he signed the waiver of rights form, he told Sullivan and Lancaster that, if the defendant was being accused of anything, he wanted an attorney. Sullivan stated that, although he did not remember Rev. Ash's exact words, he told Ash that the defendant was not being accused by him at that time. Sullivan also testified that Ash "asked and inquired about a lawyer and he was told that would be left up to him if he wanted a lawyer or not, but his son was not being accused at that time."

Lancaster also remembered Ash saying something about a lawyer and stated that in response to that inquiry, Ash was told that, if he would like a lawyer, "one can be provided right now."

Rev. Ash also testified that when he stated that he wanted a lawyer if the defendant was being accused of anything he was told "we have a Juvenile Officer right here, and the Juvenile Officer will protect all of Danny's rights. That that's what he is here for, he is going to protect Danny's rights." Lancaster testified that no one ever stated that an attorney was not necessary.

The waiver form was signed at 3:00 o'clock P.M. by both the defendant and Rev. Ash. The questioning of the defendant by Investigator Sullivan then started and lasted approximately one hour. Lancaster was present, with the defendant, during the entire period of this questioning.

After a break in the questioning, Investigator Jimmy Abbett of the Alabama Bureau of Investigation began questioning the defendant at 5:27 P.M. Between these two interviews the defendant was with his wife and the juvenile officer. There was no law enforcement officer in the room at that time. Lancaster testified that, when the defendant asked to see his wife, he went and got her. Lancaster also stated that the defendant never asked to see his father or an attorney. After the first interview by Sullivan, the defendant asked Lancaster "not to let Mike Sullivan back in and talk to him anymore" but did not state the reason for this request. The defendant initially admitted the killing to Lancaster.

Investigator Abbett advised the defendant of his constitutional rights. The defendant signed a second waiver of counsel form at 5:30 P.M. He then gave a written statement which he signed at 6:55 P.M. Lancaster was also present during this interrogation.

In his confession, the defendant stated that he played "cowboys and Indians" with Wendy and that he remembered tying her hands and feet with nylon cord. The next thing he remembered was "seeing a cord around her neck" and checking the child to discover that she was dead.

Sometime before 6:55 P.M., Assistant District Attorney Gavin told the defendant's parents that the defendant had confessed. Rev. Ash did not request an attorney at that time.

Both Rev. and Mrs. Ash testified that after 4:30 P.M. Rev. Ash repeatedly asked but was not allowed to see his son. They stated that Assistant District Attorney Ray Martin kept telling them to "wait a few minutes ... just a few minutes more." This was in direct conflict with Martin's testimony that "on several occasions" Rev. Ash asked "how much longer any questioning was going to go on" but on only one occasion did Rev. Ash request to see his son: "I do remember him one time asking me, or telling me, or asking me if he could see Danny, and at that time, we did go downstairs."

Lancaster testified that "(a)t the times that I spoke with (the d...