Brown v. State

• Decision Date: 09 December 1969
• Docket Number: 1 Div. 5
• Citation: 45 Ala.App. 265,229 So.2d 40
• Parties: Tony Ray BROWN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 40

229 So.2d 40

45 Ala.App. 265

Tony Ray BROWN v. STATE.

1 Div. 5.

Court of Criminal Appeals of Alabama.

Dec. 9, 1969.

[45 Ala.App. 266] No Attorney for appellant.

MacDonald Gallion, Atty. Gen., and John A. Lockett, Asst. Atty. Gen., for the State.

ALMON, Judge.

Appellant was indicted by a Washington County Grand Jury for murder in the first degree. A jury found him guilty of manslaughter in the first degree and fixed his punishment at ten years in the penitentiary.

The decedent died of wounds received either late Christmas Eve or early Christmas morning of 1966. There is no need to set forth the evidence since the case must be reversed for erroneously admitting into evidence certain blood-stained clothes, allegedly belonging to appellant, which were seized in an illegal search.

The record shows that Sheriff Sullivan went to Anna LeCate's house looking for clothes that appellant wore Christmas Eve night. We quote from Sheriff Sullivan's testimony:

'Q Sometime after Sunday did you go to Anna LeCate's house where this defendant was living?

'A Yes, sir.

'Q In search of what?

'MR. HURST: I object. He would have no right to search the premises without a search warrant.

'MR. TURNER: I am just asking what did he go to the house looking for; not what he searched after he got there.

'JUDGE LINDSEY: This is out of the presence of the jury.

'A I went over there looking for the clothes Tony Brown had on Saturday night.

'Q Prior to that time did you have a search warrant issued here in the courthouse in Chatom?

'A To the best of my knowledge I did. In case I had to search.

'Q I will show you an affidavit here. Did you sign that affidavit before Georgene O. Wood, Judge of the Court of General Sessions?

'A Yes, sir.

'Q All right, and after you signed that affidavit did Georgene O. Wood the Judge of the Court of General Sessions, issue that search warrant to you?

'A Yes, sir.

'Q After you got that search warrant issued did you at that time go over to Anna LeCate's house where Tony Brown lived?

'A Yes, sir.

'Q All right, and when you got over there was Anna LeCate there?

'A Yes, sir.

'Q Did you go in the house?

'A Yes, sir.'

The affidavit and search warrant issued by Judge Wood read as follows:

'REQUEST FOR SEARCH WARRANT

'STATE OF ALABAMA

WASHINGTON COUNTY

STATE'S EXHIBIT NO. 3 mnw

'Before me, Georgine O. Wood, Judge of the Court of General Sessions of said County and State, personally appeared C. J. Sullivan, who being by me duly sworn, deposes and says that he has probable cause to believe that Tony Brown did feloniously kill David Clark and that certain evidence of said crime is concealed on the person or the premises of the said Tony Brown or where he resided at the home of Anna LeCate in Fruitdale, Washington County, Alabama.

'/s/ C. J. Sullivan

'Sworn and subscribed before me this the 26th day of December, 1966.

'Georgine O. Wood

Judge of the Court of General Sessions'

'SEARCH WARRANT

'STATE OF ALABAMA

WASHINGTON COUNTY

STATE'S EXHIBIT NO. 4mnw

TO ANY SHERIFF OF SAID COUNTY:

'Proof by affidavit having this day been made beffore me by C. J. Sullivan, that he has probable cause to believe and does believe that Tony Brown did feloniously kill David Clark and has certain evidence concealed on his person or his premises or at his residence in the home of Anna LeCate in Fruitdale, Washington County, Alabama.

'You are therefore commanded at any time day or night to make immediate search of the person of Tony Brown or his premises or his home in the residence of Anna LeCate in Fruitdale, Washington County, Alabama, for any evidence pertaining to the felonious killing of David Clark; and if you find the same, or any part thereof, to bring it forthwith before me at the Courthouse at Chatom, Washington County, Alabama.

'Dated this 26th day of December, 1966.

'/s/ Georgine O. Wood

Judge of Court of General Sessions

'Executed by taking into my possession the following described property, to-wit:

'One blue plaid shirt; one pair boots; one pair of pants; one pair of shoes which property was taken from the person, the premises or the home of Tony Brown in the residence of Anna LeCate in Fruitdale, Washington County, Alabama.

'This the 28th day of December, 1966.

'/s/ C. J. Sullivan

Sheriff' The affidavit made before Judge Wood was insufficient as a basis for issuing the search warrant for at least two reasons: (1) the affidavit is conclusory because it does not set out any facts from which the magistrate could make a finding of probable cause either that a felonious killing had taken place or that any evidence was concealed either on the person or premises described; and (2) the affidavit did not describe the property to be seized.

'A search warrant can only be issued on Probable cause, supported by affidavit, naming or describing the person, and particularly describing the Property, and the place to be searched.' (Emphasis added) Title 15, Sec. 102, Code of Alabama, 1940.

The affidavit states that Sheriff Sullivan has probable cause to believe, etc., but the very essence of search and seizure law is that the issuing magistrate must make a finding of probable cause from facts communicated to the magistrate by the affiant. See Knox v. State, 42 Ala.App. 578, 172 So.2d 787, cert. den. 277 Ala. 699, 172 So.2d 795; Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723; Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081.

One of the contentions in the motion for a new trial is that the trial judge erred in admitting evidence of appellant's inculpatory statement or confession. This matter was before the trial court on two occasions. First, on a pre-trial motion to suppress the alleged confession and, second, during the trial on voir dire outside the presence of the jury. We quote from Sheriff Sullivan's testimony at the pre-trial hearing as follows:

'Q Now then, do you recall that on Sunday night, December 25, when Mr. Brown was brought into your office that I at that time advised him that he was under arrest for suspicion of murder of Mr. David Clark?

'A Yes, sir.

'Q And do you also recall me advising him on that occasion that he didn't have to make a statement; that if he did make a statement it would be used against him, or could be used against him in a court of law?

'A Yes, sir.

'Q That if he didn't have an attorney there we would get one for him, that he was entitled to get one?

'A Yes.

'Q Did he say that he was unable to employ an attorney? Let me ask you this did he say he would make a statement after I advised him of his Constitutional rights?

'A The best of my knowledge he told us he would tell us what happened.

'Q And he made no statement about an attorney at all?

'A No, sir.

'Q Did anybody sitting there while we questioned him threaten him, or use any coercion, or offer any reward or hope of reward to get him to make a statement?

'A No, sir.

'Q You said we also interrogated him Monday night?

'A Yes, sir.

'Q Did we also advise him again of his Constitutional rights at that time?

'A Yes, sir.

'Q Did anybody there Monday night threaten him, intimidate him, use any coercion, or offer any inducement or reward or hope of reward to get him to make a statement on Monday night?

'A No, sir.

'Q What about Tuesday night, did we again advise him of his Constitutional rights?

'A Yes, sir, every time we talked to him he was advised.'

Sheriff Sullivan and Honorable Edward P. Turner, Jr. testified during the trial outside the presence of the jury as follows:

'Q Did I advise the defendant he was under suspicion of murder, of having killed Mr. Clark?

'A You certainly did.

'Q Did I also advise him that he had the right to remain silent and not make any statement?

'A Yes, sir.

'MR. HURST: I object. That would be hearsay.

'MR. TURNER: I will be glad to testify.

'WHEREUPON, HON. EDWARD P. TURNER, JR., being duly sworn, testified as follows:

'MR. HURST: I ask that Mr. Sullivan be put under the rule while Mr. Turner testifies.

'Sheriff Sullivan leaves the court room.

'MR. TURNER: Do you want to question me, Grady, or just want me to state what I told him, or how do you want to proceed?

'MR. HURST: I suggest you state what you want to.

'A My name is Edward P. Turner, Jr., and I am Assistant District Attorney for Washington County, Alabama, and was such on December 25, 1966. In my official capacity as Assistant District Attorney for Washington County, I conducted the investigation of the death of Mr. David Clark in connection with the Sheriff's Department of Washington County. The defendant in this case, Mr. Tony Ray Brown, was picked up on my instructions to the Sheriff's Department on my order and brought to the Washington County jail, as I recall, on Sunday night, December 25, 1966. Mr. Brown was brought into the sheriff's office, as I recall, that night to be questioned as to the circumstances surrounding the death of Mr. Clark. When Mr. Brown was brought into the Sheriff's Department for questioning there was no one present but Mr. Brown and myself and the sheriff, C. J. Sullivan. When Mr. Brown was brought into the office either the sheriff or I told him that we wanted to question him concerning the death of Mr. Clark. At that time I advised Mr. Brown that he, along with others, was under suspicion of murdering Mr. Clark; that he did not have to make a statement or tell us anything in connection with this investigation; that he had a right to a lawyer to be present while he was being questioned by us; if he could not afford a lawyer that the State or County, I don't recall whether I said the State or County, that he would be furnished a lawyer by either the State or County, and further advised him that if he made any statement it could be used against him in the event he was later charged with having murdered Mr. Clark; and that also he had a right to stop answering questions or to refuse to answer them at any time he so desired. At that time Mr. Brown told the sheriff and I that he would cooperate...