Braggs v. State, 1 Div. 438

• Decision Date: 13 February 1969
• Docket Number: 1 Div. 438
• Citation: 219 So.2d 396,283 Ala. 570
• Parties: Edward BRAGGS v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 396

219 So.2d 396

283 Ala. 570

Edward BRAGGS v. STATE of Alabama.

1 Div. 438.

Supreme Court of Alabama.

Feb. 13, 1969.

Vernon Z. Crawford, Mobile, for appellant.

MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Special Asst. Atty. Gen., for the State.

COLEMAN, Justice.

Defendant appeals from conviction for murder in the first degree with sentence of life imprisonment.

The evidence tending to support the contention of the state shows that the deceased was living with her son in a house on Wilson Avenue in Prichard. Allenby Street intersects Wilson Avenue immediately south of the place. On Sunday, July 17, 1966, the son was working at Providence Hospital as a pharmacist. He got off from work about 11:15 p. m. He and a nurse went to Johnny's Drive-In for a sandwich. They went back to get her car about 12:30. He followed her home and then went home between 1:00 and 1:30 a. m. Monday morning, July 18. He looked into his mother's room, checked to see that she was all right, and went to bed in another room.

About 3:35 a. m. he woke up and heard his mother groaning. She was complaining of a terrible headache and calling out for medicine. He found her sick and bleeding and called an ambulance. Things in the house were intact except that a $5.00 bill was missing from his pants which he had left at the foot of his bed and which he subsequently found on a loveseat in the dining room.

When he went in to his mother's room, she had blood all over her face and there was blood on the pillow. He went to the bathroom adjoining her room and snapped on the light. There was blood all down the side of the wall and all over the bathroom. He dampened some wash cloths and was wiping the blood off her face. He could not tell where the blood was coming from. She was completely incoherent and did not recognize him. He turned the light on and there was blood all over the bed. There was blood on the floor by the bed and a trail of blood from the bed to the bathroom. His uncle and aunt arrived. Both front and back doors were secure. The other door had an air conditioning unit in it.

The mother was taken to the hospital and examined by two doctors. She had a laceration the full thickness of the scalp a little over an inch long and about a half inch in width. She was operated on and died the following morning approximately twenty-six hours later. Cause of death was brain damage caused by the laceration. She had a skull fracture.

Police officer Blake arrived at the house about 5:00 a. m. July 18. He found a window 'raised a little bit.' There is testimony as to the height it was raised varying from two to six inches. He went back inside the house. There were dried leaves and debris on the bloody pillow and a couple of leaves on the floor by the bed.

There is testimony to effect that the window had been pried open. Indentations or tool marks were found on the window which matched a yellow handled screw driver which was obtained from the house where Elijah Bridges lived.

A pair of dungarees or blue overall pants allegedly worn by defendant on Sunday night, July 17, were found to have on them fibers similar in size, material, shape, and color to fibers on the spread and sheets on the bed. Paint samples taken from the sill of the open window were found to be 'identical in composition to the paint samples' cut out of the trousers.

Defendant's evidence tended to show that, in the early morning of July 18, he was at his sister's house some distance from the house of deceased and had no connection with the death of deceased.

Defendant argues several points in brief which we will discuss.

1 and 2.

Defendant argues that the court erred in denying defendant's motion to quash the indictment on the ground that the indictment had been found by a grand jury from which women had been systematically excluded.

The indictment was returned September 28, 1966. Judgment of conviction was rendered February 3, 1967. In White v. Crook, 251 F.Supp. 401, 410, the court considered the exclusion of women from juries in Alabama and said:

'. . . In this connection, since the next regular session of the Alabama Legislature is not scheduled until January, 1967, the defendants should be allowed until June 1, 1967, considered by this Court to be a reasonable period prior to the time the defendants should be required to include women as jurors.'

Indictment, trial, and conviction of defendant occurred prior to the cut off date set by the federal court for inclusion of women on juries, and, for that reason, if for no other, defendant's contentions based on exclusion of women from juries are not sustained.

3.

Defendant argues that the court erred in admitting the evidence of police officer Blake to prove that defendant had made certain inculpatory statements.

Defendant says that the warning, or statement of his rights, given to defendant by the officers did not comply with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974, in that defendant was not told that he had the right to remain silent. This argument is answered by the testimony of Blake on voir dire as follows:

'Q But you left out one thing didn't you? Did you tell him that he did not have to say anything at all?

'A Yes sir. We told him that any statement that he made could be used in a Court of law against him and during the course of questioning that if he wanted a lawyer he could have a lawyer present at the time of the questioning.

'Q Now Lt. I've asked you three times is that all, is that all, is that all and you never did once say that I told this Defendant or it was spoken in front of me by one of your officers that you do not have to say anything. Now did you tell him that or didn't you?

'A. It was said in my presence. I don't remember who it was that said it.'

Defendant says further that evidence of the inculpatory statements was not admissible because defendant was not promptly taken before a magistrate as required by § 160, Title 15, Code 1940.

This court has said:

'The McNabb rule excluding any confession obtained while defendant was illegally detained does not apply in Alabama. (Citations Omitted)' Hutto v. State, 278 Ala. 416, 422, 178 So.2d 810, 815.

In Fikes v. Alabama, 352 U.S. 191, 194, 77 S.Ct. 281, 1 L.Ed.2d 246, in considering admissibility of a confession, the court, in footnote 2, with reference to § 160, Title 15, said:

'Under the cases of that State, violation of this requirement does not render inadmissible a confession secured during such detention. See Ingram v. State, 252 Ala. 497, 42 So.2d 36. Nevertheless, such an occurrence is 'relevant circumstantial evidence in the inquiry as to physical or psychological coercion.' Stein v. People of State of New York, 346 U.S. 156, 187, 73 S.Ct. 1077, 1094, 97 L.Ed. 1522.'

Defendant says:

'The Court must take into account that the chief interrogating officer could not remember many of the factors most relevant to the present inquiry. Furthermore, he was present during only a fraction of the interrogation period, was out of the room when the alleged statements were first elicited (Tr. 212-13) and could not testify as to what methods the other interrogators, (and there were at least three) (Tr. 185-186), employed (Tr. 185-6, 213). Appellant respectfully submits that a careful review of merely that portion of the testimony preceeding (sic) the Court's ruling (Tr. 184-213) indicates that the State did not meet even the minimum burden required by law in laying a predicate for the admission of the alleged inculpatory statements and that the Trial Court erred in allowing their introduction in testimony.'

Defendant says that Blake '. . . . was out of the room when the alleged statements were first elicited . . ..' We do not agree that the evidence shows that defendant first made the inculpatory statements at a time when Blake was not present. ¹

It is true that Blake was not present throughout defendant's interrogation and that all officers who took part therein did not testify with respect to defendant's statements as to which Blake testified. Blake did testify, however, that defendant was given adequate warning of his rights and that no one offered threat or inducement to defendant in Blake's presence or within his knowledge. This court has said:

'It was the right of the accused to controvert the predicate evidence preliminary to the introduction of the confession by cross-examination of the State's witnesses or by evidence aliunde, but the State, having established by the preliminary proof the voluntary nature of the confession, was not required to examine every witness present when the confession was made or to array for interrogation every person who might have had access to or conversation with the prisoner during his incarceration in order to remove the prima facie presumption of involuntariness.' Logan v. State, 251 Ala. 441, 444, 37 So.2d 753, 755.

On consideration of all the circumstances surrounding the making of the statements in the instant case, we are of opinion that error does not appear in the admission of the testimony of the witness Blake with respect to inculpatory statements made by defendant.

4.

Defendant says the court erred in admitting into evidence certain hairs taken from defendant's body.

As we understand the evidence, the injury to deceased occurred during the early morning hours of Monday, July 18, 1966. Police Sergeant Reynolds testified that on July 22, 1966, he took down the drapes on the window which had been found partially open. He testified:

'A As I was taking the drapes down on the back side of the drapes which would be facing outside the house I noticed one hair and it was just about----

'MR. CRAWFORD: Object.

'THE COURT: Overruled.

'Q Go ahead.

'A The hair was just about to fall off so I removed it at that time and put it in a little brown envelope and sealed it up to make sure that I wouldn't lose it.

'Q Did it stay in your...