Bracewell v. State

• Decision Date: 22 January 1980
• Docket Number: 4 Div. 663
• Parties: Debra BRACEWELL, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 124

401 So.2d 124

Debra BRACEWELL, alias v. STATE.

4 Div. 663.

Court of Criminal Appeals of Alabama.

Jan. 22, 1980.

Rehearing Denied Feb. 26, 1980.

Certiorari Granted Oct. 20, 1980.

BOOKOUT, Judge.

This cause was remanded with instructions by the Supreme Court of Alabama to the Court of Criminal Appeals "to further review the entire record of the proceedings below, including the propriety of the sentence of death." Bracewell v. State, 401 So.2d 123 (1979).

Pursuant to these instructions, this Court has carefully reviewed the entire record, including all of the circumstances presented at trial with reference to both the "Miranda" predicate and the "voluntariness" predicate, and we find that a proper predicate was laid at trial in each instance.

I

We are of the opinion that there was a sufficient voluntariness predicate laid and that the trial judge did not improperly limit the appellant's opportunity to inquire into the circumstances surrounding her written confession. We likewise conclude that the circumstances of the appellant's interrogation were not as severe and overpowering as those in Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962), referred to in the dissent of Judge Tyson.

We find that the Miranda predicate was proper. We conclude that both elements lacking in Square, Marcus, Trott and United States ex rel. Williams, referred to in the dissent, are sufficiently covered in the instant Miranda warning.

II

The conviction should be affirmed, but the cause should be remanded with directions for the trial judge to conduct another sentencing hearing and only consider aggravating circumstances set out in § 13-11-6, Code of Alabama 1975.

More specifically, the trial court considered the appellant's participation in grand larceny and other crimes not involving "the use or threat of violence to the person" as outweighing the mitigating circumstances it had earlier found. Pursuant to § 13-11-6(2), the court could only consider whether the appellant "was previously convicted of another capital felony or a felony involving the use or threat of violence to the person." It should be noted that the trial court was not listing other offenses for the purpose of negating the mitigating circumstance enumerated in § 13-11-7(1), that the appellant had no significant history of prior criminal activity. To the contrary, the trial court's finding in this regard was to specifically outweigh two other mitigating circumstances as an aggravating circumstance and was thus improper under the statute.

Pursuant to the mandate of the Alabama Supreme Court in remanding this cause to this court, we would likewise direct the trial court to carefully reconsider the imposition of the death sentence where two mitigating circumstances weigh heavily in the appellant's favor, i. e., her young age and the dominance of her husband, her senior by several years.

AFFIRMED, REMANDED WITH DIRECTIONS.

HARRIS, P. J., and BOWEN, J., concur in the above.

DeCARLO, J., concurs in Part

I and concurs specially in Part II.

TYSON, J., concurs in Part

II and dissents as to Part I.

TYSON, Judge, dissenting in part and concurring in part.

I

Sheriff W. E. Harrell testified that, at 1:10 p. m. on January 23, 1978, after questioning Debra Bracewell on at least four or five prior occasions over a three month interval, he gave the following Miranda type warning just prior to an interrogation in his office at the Covington County Courthouse. Also present was Mr. Marlon Brewer, Criminal Investigator for the State Department of Public Safety, Bureau of Investigation, and during part of the interrogation one or more of the deputies were in and out of the office at the time. Mrs. Linda Cassady came in and took down the statement, which was reduced to writing, read back to the appellant, and then executed by her (Vol. II, R. p. 324), and is as follows:

"A. 'Number One. You have the right to remain silent. Number Two. Anything you say can and will be used against you in a court of law. Number Three. You have the right to talk to a lawyer and have him present with you while you are being questioned. Number Four. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. Number Five. You can decide at any time to exercise these rights and not answer any questions or make any statements.' After we did that, we told her or asked her rather, did she understand each of these rights that we had explained to her and she replied that she did. We asked her then, at that time, having these rights in mind, do you wish to talk to us now. She replied that she did. Then we read another paragraph on this same page known as the waiver of rights. It says, 'I have read or had read to me a statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promise or threat has been made to me and no pressure of any kind has been used against me to get me to make a statement.' " (Emphasis supplied.)

Investigator Brewer stated that he, too, read the Miranda type warning to Debra Bracewell on the afternoon of January 23, 1978, which Miranda warning is as follows (Volume II, R. p. 304):

"A. I advised her from this form. 'You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish. You can decide at any time to exercise these rights and not answer any questions or make any statements.' And, I asked her if she understood those. And she stated she did. I asked her, having those in mind and understanding them, was she willing to talk with us and she said she was.

"Q. All right. At that time, did you ask her to sign it?

"A. Yes, I did.

"Q. And did she sign it in your presence?

"A. Yes, she did.

"Q. Did you witness it in her presence?

"A. I certainly did.

"Q. And did Linda Cassady witness it then?

"A. Yes, she did. In her presence."

(Emphasis supplied.)

I do not consider either of these warnings to be models to emulate because of the "futuristic" aspect of the warnings above set forth and underscored. See Square v State, 283 Ala. 548, 219 So.2d 377 (1969); Marcus v. State, 50 Ala.App. 526, 280 So.2d 786, cert. denied, 291 Ala. 350, 280 So.2d 793 (1973); Trott v. State, 51 Ala.App. 40, 282 So.2d 392, cert. quashed, 291 Ala. 800, 282 So.2d 402 (1973); United States ex rel. Williams v. Twomey, 7 Cir., 467 F.2d 1248 (1972).

However, I do consider the type of Miranda warning here given, and the form of same to be one factor to be considered in determining whether or not the trial court made a proper determination of the "voluntariness" of the appellant's statement.

In Culombe v. Connecticut, 367 U.S. 568, 81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961); and Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961), the United States Supreme Court set forth a number of criteria which are used by that Court in determining the "voluntariness" of an incriminatory statement.

From these cases, I learn that the age of the party, the opportunity to confer with family, or counsel, if the party be a minor, the length of time of incarceration before a statement is given, the opportunity to confer with counsel, the mental condition of the accused, the educational background of the accused; and the "likelihood of the truth" of the statement is not the proper criteria "standing alone" to pass upon this matter.

Because only the circumstances surrounding the accused's statement given in the sheriff's office, allegedly on the afternoon of January 23, 1978, were before the trial court, after reviewing the entire circumstances leading up to the final incriminatory statement, I am of the opinion that the wrong test was used by the trial court in determining the voluntariness of Debra Bracewell's statement, and, therefore, would reverse and remand this cause for these reasons. White v. State, 260 Ala. 328, 70 So.2d 624 (1954); and Myhand v. State, 259 Ala. 415, 66 So.2d 544 (1953).

Debra Bracewell was born April 17, 1960 (Volume II, R. p. 290). At the time of her arrest on November 4, 1977, she was seventeen years of age. She was an individual who had been married to her husband, Charles Bracewell, a man twenty-six years of age, for approximately ninety days. She had an eighth grade education.

Because it was necessary for this Court to look carefully at the testimony offered at the sentencing hearing on the question of aggravating, as well as mitigating, circumstances which exist, in order to put the total interrogation in this cause in its proper perspective, I also note the following.

Investigator Brewer testified at the sentencing hearing (see §§ 13-11-1 through 13-11-9, Code of Alabama 1975) that he first met Debra Jeanene Bracewell on or about August 18 or 19, 1977, at the Police Department in Opp, Alabama. He interrogated her with reference to some allegedly stolen property and read to her a "standard Miranda card" at that time (Volume III, R. pp. 411-412). He stated the conversation took place in the Chief of Police's office and that he interrogated her concerning some shoplifting, which allegedly took place at the T G & Y store in Opp. He stated that he also interrogated her with reference to an alleged robbery of a "Jr. Food Store" in Andalusia in which she and her husband were involved. Investigator Brewer also stated that he interrogated her concerning an alleged shoplifting incident concerning a hardware store in Samson, Alabama, and also an alleged robbery of a Jr. Food Store in Samson. Investigator Brewer stated that he interrogated Debra Bracewell on other occasions later, but that he next talked with her concerning...