Brown v. State
Decision Date | 24 February 1981 |
Docket Number | 3 Div. 308 |
Citation | 396 So.2d 137 |
Parties | Peter BROWN v. STATE. |
Court | Alabama Court of Criminal Appeals |
No briefs filed for appellant.
Charles A. Graddick, Atty. Gen., and Deborah Hill Biggers, Asst. Atty. Gen., for appellee.
The sixty-one year old defendant was indicted for the first degree murder of his wife. A jury convicted him of manslaughter in the first degree. Sentence was ten years' imprisonment.
By statute, this Court is charged with the duty of considering "all questions apparent on the record or reserved in the circuit court." Alabama Code 1975, Section 12-22-240. This obligation exists even though the defendant has not filed a brief on appeal. Higginbotham v. State, 262 Ala. 236, 78 So.2d 637 (1955).
Hayneville Police Officer Carl Edward Silvers arrested the defendant. Officer Silvers testified that he read the defendant his rights from a card but did not state the specific content of these rights.
Lowndes County Sheriff John Hulett was with Officer Silvers. He also read the defendant his rights from "a waiver of rights form." Again, there was no testimony as to the content of these rights.
John B. Pemberton, Jr. was the investigator for the Alabama Department of Public Safety investigating the death of Mrs. Brown. He questioned the defendant at the Lowndes County Sheriff's Office after advising the defendant of his rights. Pemberton testified that he "went through great pains in explaining his rights to him."
Investigator Pemberton advised the defendant of his rights in the following language:
(emphasis added)
Before the jury, Investigator Pemberton explained:
The defendant could not read or write but made his mark on DPS Form No. 30, apparently a waiver of rights form. This form was never read into evidence. It was not allowed to be introduced into evidence after Sergeant Pemberton testified that, in his judgment, it was "very doubtful that he (the defendant) knew what it was, or if he understood what was on that paper."
Questioning of Investigator Pemberton by defense counsel revealed the following
The warnings given the defendant run afoul of Square v. State, 283 Ala. 548, 219 So.2d 377 (1968). In Square, the suspect was advised:
(emphasis added)
This warning was held insufficient to advise the defendant that a lawyer would be appointed for him prior to any questioning as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694 (1966).
In Square, the Court cited Lathers v. United States, 396 F.2d 524 (5th Cir. 1968).
The quotation from Lathers continues: "Although there is no talismanic or heraldic abracadabra which must be fulfilled, the offer of counsel must be clarion and firm, not one of mere impressionism." 396 F.2d at 535. Here, the defendant was never informed that he had the right to put off answering any questions until the time when he did have an appointed attorney as was the case in United States v. Lacy, 446 F.2d 511 (5th Cir. 1971).
Here, as in United States ex rel. Williams v. Twomey, 467 F.2d 1248 (7th Cir. 1972):
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Garrett v. State, 6 Div. 104
...who or what agency would appoint him a lawyer or when the same could be accomplished." On appeal, he contends that Brown v. State, 396 So.2d 137 (Ala.Cr.App.1981), In Brown, this Court condemned a Miranda warning which was subject to the construction that appointed counsel would be availabl......
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State v. O'Guinn
...be available only in the future, Miranda has not been obeyed...." This position was relied on in part by this court in Brown v. State, 396 So.2d 137 (Ala.Crim.App.1981), as well. As noted by the state, the "here and now" requirement of Lathers has been explicitly overruled by United States ......