Brown v. State, 6 Div. 302
| Citation | 393 So.2d 513 |
| Decision Date | 20 January 1981 |
| Docket Number | 6 Div. 302 |
| Parties | Malcon BROWN v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Neil C. Clay, Bessemer, for appellant.
Charles A. Graddick, Atty. Gen. and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for appellee.
A jury found appellant guilty of burglary under an indictment charging in pertinent part that he "did in the night time with intent to steal, break into and enter a shop, store, warehouse, or other building of City of Bessemer Board of Education, City Vocational School, in which goods, wares, or merchandise was kept for use, sale, or deposit." The court fixed his punishment at imprisonment in the county jail for twelve months and sentenced him accordingly.
The undisputed evidence shows that one Wayne Richardson, accompanied by appellant-defendant, broke into and entered the premises described in the indictment on the night of May 4, 1979. Wayne Richardson testified that he and Malcon Brown went in to get a carburetor to put on Brown's automobile. Brown testified that they went into the building to play basketball. While the entry was being made, the burglar alarm was sounded and officers arrived before the intruders left the inside of the building. They arrested Richardson on the outside of the building, but appellant was not captured until the following day.
Appellant's first three contentions that the judgment of the trial court should be reversed are directed at the action of the trial court in admitting in evidence, over the objections of defendant, a statement written by an officer that defendant signed wherein he admitted an entry into the building with Richardson. The ruling of the trial court was made after a hearing, out of the presence of the jury, as to the voluntariness of the statement and as to whether defendant had knowingly and intelligently waived his right to counsel at the expense of the State and to freedom from self-incrimination. Testimony of the officer taking the statement was to the effect that he read to defendant the contents of the "Miranda Card," explained to the defendant what he had read, and asked defendant if he understood what had been read to him. The officer said that the witness answered in the affirmative and stated that he desired to make a statement, which he did, and thereafter signed the statement. The officer said that defendant stated that he could not read, but that he could sign his name.
Defendant also testified out of the presence of the jury as to what was said and done by the officer taking defendant's statement and as to defendant's ability to understand what the officer had told him. He said that he was twenty-three years of age, he had gone to the eleventh grade in school, and was employed by the city of Bessemer to work on a garbage truck and at different jobs. He said he could not read, but that he signed his name to the statement. He vacillated as to whether the officer had read to him the contents of the "Miranda Card" by at first denying that the officer did so, but on cross-examination he acknowledged that the officer did. Portions of defendant's testimony out of the presence of the jury are as follows:
On cross-examination, defendant testified, inter alia:
There is no contention that defendant was in any way coerced by the officer taking his statement, or by any other law enforcement personnel. In our review of the trial court's ruling on the admissibility of the extrajudicial statement of the defendant, we are impressed especially by the following part of defendant's testimony relative to the reading to him by the officer of the contents of the card from which he read:
We do not know, as the trial court did, how the officer, as a witness, read the card to the court. Perhaps he could have read it in such a way as to make it difficult for most persons to understand; but we are not in as good a position as the trial court was to determine whether the defendant did in fact sufficiently understand what had been read to him to show that his extrajudicial statement was voluntarily, understandingly and intelligently made. We are not convinced that the trial court was in error in admitting the statement in evidence.
In considering the question of the admissibility of defendant's extrajudicial statement, we have not overlooked the contention now made by appellant that bearing on that question is considerable evidence of substantial mental retardation of defendant, including the testimony of a witness who was one of defendant's teachers "about four years on the elementary level and two years in high school" who said, "His I.Q. was about 55." This testimony was offered after defendant's extrajudicial statement had been admitted in evidence and after defendant had presented evidence by himself and other witnesses on the merits of the case in the presence of the jury, had rested, and had been allowed to reopen his case. Even so, we conclude that such evidence is not sufficient to cause us to change our view that the statement was properly admitted and should have been allowed to remain as evidence in the case. In emphasizing the I.Q. of 55, appellant argues that support for his contention as to admissibility of the statement is to be found in Hines v. State, Ala.Cr.App., 384 So.2d 1171 (1980). We do not agree. In Hines, "the defendant was at least moderately mentally retarded with an I.Q. of 39." This, however, is not the only difference. The evidence in that case was replete with illustrations of behavior of defendant and testimony of psychiatrists and other experts who had examined him that led to the only reasonable conclusion possible that no case had been found "involving mental retardation and the voluntariness of a confession wherein the degree of mental retardation was as extreme as that presented" therein and that under all of the circumstances shown by the evidence "the defendant could not have made a 'knowing and intelligent' waiver of his constitutional rights," which rendered his confession inadmissible. 384 So.2d at 1181. The correct conclusion reached in Hines, the thorough analysis of the pertinent evidence therein, and the valuable collation of authorities on the subject strengthen our conclusion that the trial court correctly permitted defendant's statement in the instant case to be and remain in evidence.
Another asserted ground for a reversal is based on the ruling of the court as shown by the following during the closing argument of counsel for the State:
The context of the argument is not shown. It is clear, however, that it was referable to the extrajudicial statement made by defendant to the officers and to his testimony. We cannot approve of the two sentences: ...
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