Barfield v. State

• Citation: 304 So.2d 257,54 Ala.App. 15
• Decision Date: 26 November 1974
• Docket Number: 6 Div. 727
• Parties: Bertha Mae BARFIELD v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 257

304 So.2d 257

54 Ala.App. 15

Bertha Mae BARFIELD v. STATE.

6 Div. 727.

Court of Criminal Appeals of Alabama.

Nov. 26, 1974.

Rehearing Denied Jan. 17, 1975.

Robert. R. Bryan, Birmingham, for appellant.

William J. Baxley, Atty. Gen., Montgomery, and Quentin Q. Brown, Jr., Asst. Atty. Gen., Birmingham, for appellee.

LEIGH M. CLARK, Supernumerary Circuit Judge.

This is an appeal from a conviction of murder in the first degree and a sentence of life imprisonment in the penitentiary. The victim, one Prince Albert McKinney, was killed on October 26, 1972, by pellets from the shell of a shotgun, which was fired while he was sitting in the driver's seat of his station wagon automobile parked at an apartment building in Birmingham. The pellets entered the right side of his head in front of his ear in the temple area. A deputy coroner testified that the wound was about one inch by one inch and that in his opinion the gun was fired at close range. As to this, there is no conflict in the evidence and there seems to be no disagreement between the parties.

According to the testimony of Dorothy Ann McKinney, the wife of the victim, a witness for the State, she had been married to decedent twelve years; he was attending school at the Tarrant Educational Center; he left the home of decedent and the witness and their children near Pinson, Alabama, on his way to school, at about 8:00 or 8:30 the morning of his death, and she did not see him again until after his death.

Carolyn Goldsby, a witness for the State, testified that she saw McKinney about 11:45 A.M. the day of his death at her apartment at 2228 Twenty-first Avenue, North, in Birmingham, where he stayed about twenty minutes at that time and left her apartment with a friend. She stated she drove the automobile of deceased to the school he was attending and picked him up there at about twenty minutes before 3:00 P.M.; they left the school and went to her apartment; on their way to her apartment she saw defendant driving an automobile in the opposite direction; defendant blew the horn of her automobile twice. The witness and deceased arrived at her apartment about 3:00 P.M. With the exception of a few minutes spent with a girl friend and about five minutes going to a store, she spent the rest of the time with decedent at her apartment until they left the apartment about ten minutes before 8:00 that night. McKinney got in his car, a station wagon, on the driver's side; she walked around behind the station wagon and got in on the passenger's side in the front seat, where she sat with one foot inside the car. As she was reaching for the door, she heard a loud noise and got out of the car. She said she couldn't tell where the loud noise came from, she stood there talking to McKinney, but he didn't respond. She said something about a blowout, but McKinney said nothing; he never moved; she looked on her side of the car and kept talking to McKinney, but he never responded. She was on the passenger side. She noticed smoke in the automobile; it was 'haze like.' She then ran down the street and started screaming. She obtained assistance and returned to the automobile and then learned that McKinney was dead.

Sergeant James E. Gay, a homicide investigator for the Birmingham Police Department testified that he had a call to 2228 Twenty-first Avenue, North, and found the dead body of McKinney in the front seat of a station wagon, where it was parked. He made an examination, conducted an investigation and took some photographs. Thereafter, he went to the morgue to view the victim; went to the office and took a statement from Carolyn Goldsby. On October 30, at approximately 9:00 P.M., he had a conversation with defendant in front of her father's house. She stated that she had gone with Prince Albert McKinney but had not gone with him since July, but that she saw him ride by her house about 8:00 A.M. the day of his death. She said that she had a son four months old by Prince Albert McKinney. After talking with her for sometime, the witness 'asked her could she come to my office to make a formal statement, where a stenographer could take it down, and she said, 'Yes," An appointment was made for 3:00 P.M. the following day. At about 3:50 P.M. the following day he took a statement from her, in which she substantially repeated what she had stated to him the day before and answered some other questions. During the course of this conversation he asked her if she ever fired a shotgun and she replied that she had in 1970 when she was pregnant, that there was a snake in her house. He asked her if she knew where Carolyn Goldsby lived and she stated she did not 'unless she lived with her mother.' After this rather detailed conversation, he went to the snack bar and got the defendant a Coca Cola. As he was bringing it to her and as he approached the door of the room she was in, he heard her talking, stating 'he made me do it. He hypnotized me. He said, 'Vishanti.' He has done this on several occasions.' She continued to talk to herself, saying that McKinney had told her to kill him, and when she finished talking the witness went into the room and assisted her back to the chair from a 'fetal' position. The witness said that after he had brought her some kleenex and she had drunk part of the Coca Cola, he 'advised her of her rights' and testified in detail what he advised her, as to which it seems to be without dispute that there was full compliance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Thereafter, defendant in detail confessed that she had killed McKinney. She said she saw him downtown that day, that she told him that she was taking the baby to the hospital because he had been bitten by a scorpion, and defendant then said 'Vishanti.', which was an expression he had used on many occasions to hypnotize her; she stated he instructed her to get his rifle and come to 2228 Twenty-first 'Street,' North; that his station wagon would be parked at the back side of the apartments, that he would afterwards come down the steps about 8:00 with Carolyn Goldsby. He told her that defendant was to get inside the station wagon and wait in the back and that when he got to the door she was to shoot him in the stomach 'because his time was out and he had not done what he was supposed to do.' She said that when he sat down she pushed the safety off and pulled the trigger and the girl that was with him said 'I heard something, a blowout' and took off running. Defendant said she then jumped out and ran down the alley and threw the gun away. Sergeant Gay further testified that the defendant then took him and another officer to the place where she said she threw the gun away and found the gun, which was introduced in evidence.

Defendant testified at length. She denied killing McKinney and denied confessing that she had done so. She also testified that Sergeant Gay and another officer told her where the gun was and took her to it.

Several witnesses testified to a claimed alibi, stating that defendant was at home, in the Pinson area, some twenty miles from the scene of the killing, at the time the killing occurred.

One of the chief contentions of appellant is that defendant's constitutional right against self-incrimination was violated and that the confession by her should not have been admitted in evidence. It is contended that, although defendant was fully advised of her rights prior to the actual confession, there was a custodial interrogation beforehand, before she had been advised of her rights, and that the actual confession subsequently made was fruit of a prior poisonous tree of an unconstitutional custodial interrogation, which precluded a finding that she voluntarily, knowingly and intelligently waived her constitutional rights against self-incrimination and to counsel.

The trial allowed the State and defendant to go thoroughly into the question of the admissibility of the confession by voir dire interrogation of witnesses, all out of the presence of the jury. After extended testimony, argument by counsel for the parties respectively and obviously careful consideration, the court ruled that the evidence of the confession was admissible.

It is clear to us that according to some of this testimony on voir dire, the interrogation prior to the confession points in the direction of an in-custody investigation. On the other hand, it is equally clear that much of the testimony tends to lead to an opposite conclusion.

If there was no in-custody interrogation of defendant prior to the confession obtained after her rights had been fully made known to her, there can be no basis for a claim that the confession was a fruit of the poisonous tree. In order for it to be such, the tree relied upon must have itself been wrongful, that is, an in-custody interrogation without a waiver by defendant of her right to have counsel and her right against self-incrimination.

Both of the prior interrogations were apparently free of coercion or any other impropriety on the part of the officers. Although some of the questions suggest the possibility of defendant's being a suspect, and possibly a prime suspect, we are convinced by the entire interrogations and all of the circumstances, that the investigation had not focused upon her before or during either of such interrogations. Clearly they had not arrested her, and they had given no indication whatever that they planned to arrest her. Sergeant Gay talked with seven or eight other people in and around the area where the body was found, including Carolyn Goldsby and decedent's wife. It may be that the officers should have then suspected defendant, but the record as a whole, including the testimony of Sergeant Gay in charge of the investigation, is to the effect that they did not suspect her, that their investigation had not focused on her, until she spontaneously, out of the presence of an officer, volunteered statements disclosing that...