Callahan v. State

Decision Date14 April 1989
Docket Number7 Div. 978
PartiesJames Harvey CALLAHAN v. STATE.
CourtAlabama Court of Criminal Appeals

Harold P. Knight and Charles E. Caldwell, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

In 1982, James Harvey Callahan was convicted and sentenced to death for the capital offense involving the kidnapping and murder of Rebecca Suzanne Howell in violation of Ala.Code 1975, Section 13A-5-40(a)(1). Callahan v. State, 471 So.2d 447 (Ala.Cr.App.1983). That conviction was reversed by the Alabama Supreme Court. Ex parte Callahan, 471 So.2d 463 (Ala.), cert. denied, 474 U.S. 1019, 106 S.Ct. 567, 88 L.Ed.2d 552 (1985). In 1987, Callahan was retried, again convicted, and again sentenced to death. Seven issues are raised on this appeal from that conviction.

I

Appellant contends that the trial court erred in admitting statements made by him to law enforcement officers. His argument regarding the inadmissibility of these statements appears to be twofold: (1) the statements were involuntary and obtained without a waiver of his Fifth Amendment rights and (2) his attorney was not permitted to speak with him while one statement was being taken, thus depriving him of his Sixth Amendment right to the assistance of counsel.

THE FACTS

Rebecca Howell disappeared on the night of February 3, 1982. Her body was discovered in Tallasseehatchee Creek in Calhoun County on February 17. Callahan was a suspect in her disappearance and murder.

On February 22, 1982, Calhoun County Deputy Sheriff Johnny Alexander had maintained surveillance on Callahan's truck for five hours before Callahan came out of his father's house and drove away at 5:00 that morning. Deputy Alexander knew that the license tag on Callahan's truck was registered to another vehicle. He also knew that Callahan was a suspect in the Howell murder, and Deputy Alexander was familiar with that investigation.

Deputy Alexander and Jacksonville Police Sergeant Kathy Thienes stopped Callahan for having a switched tag. Deputy Alexander testified that he "explained to [Callahan] that ... the tag he had on his vehicle didn't belong to that vehicle, and that we were going to write him a ticket for a switched tag." Alexander told him that "we would have to take him to jail to write him a ticket."

At that time, the administrative policy of the sheriff's office did not permit deputies to carry "ticket books" in their vehicles. The sheriff's office was located in the county jail and the ticket book was kept there. Anyone stopped for a traffic violation was taken "to jail" where the citation was issued. This was standard procedure.

When Callahan was stopped, his conduct was suspicious and he appeared to place something behind the seat of his truck. His truck was impounded and later searched pursuant to a search warrant. See Issue II.

Deputy Alexander and Sergeant Thienes transported Callahan to the sheriff's office at the county jail. After Callahan had been issued a ticket for having a switched tag, Deputy Alexander told him that some investigators wished to talk with him. Callahan replied "okay" and Alexander told him "he could have a seat back by the television in the back of the lobby area of the county jail." Although Deputy Alexander testified that Callahan was not free to leave at that time, he also testified that he never told or placed Callahan under arrest, never placed him in custody or in jail, and never told him that he could not leave.

Deputy Alexander candidly admitted that the primary reason Callahan was stopped was because he was a suspect. At trial, Alexander testified, and the State argued, that the purpose of taking Callahan to the sheriff's office was twofold: First, to issue him a ticket for having an improper tag; and second, to turn him over to the investigators of the disappearance and murder of Rebecca Howell. Deputy Alexander remained at the sheriff's office until 7:30 or 8:00 A.M. He testified that during that time "nothing appeared to be wrong with [Callahan] physically," but that he "appeared to be a little nervous."

Deputy Max Kirby arrived at the sheriff's office around 5:45 A.M. and observed that Callahan was watching television. He testified that, approximately thirty minutes after he arrived, he and Deputy Larry Amerson walked over to Callahan and told him they would like to talk with him. Callahan said "Okay" and continued to watch television. Kirby said that it would be a while and Callahan again replied "Okay." As best this Court can determine, Callahan was fingerprinted at 7:15 A.M. At approximately 7:45 A.M., Kirby went to the District Attorney's Office, returning over an hour later. When Kirby returned, Callahan was still watching television. At approximately 9:00 A.M., Deputies Kirby and Amerson served Callahan with a "probation (1) Beginning around 9:30 A.M. on the morning of February 22, Callahan gave his first statement in the presence of Deputy Kirby and Sergeant Thienes. This statement was transcribed by Kirby and bears Callahan's signature at the bottom of each page. Deputy Kirby testified that, prior to taking his statement, he advised Callahan of his Miranda rights. Callahan stated that he understood these rights and informed Kirby that he had an attorney, but that "he didn't need him right then" and "would let [Kirby] know when he needed him." Kirby wrote down the name, address, and telephone number of his attorney. Callahan then executed a waiver of rights, which was witnessed by both Kirby and Thienes. Deputy Kirby testified that, while he was present, Callahan was neither threatened nor offered any reward or hope of reward in order to induce him to make a statement.

                tolling order/arrest warrant" issued by Circuit Judge Malcolm E. Street and placed him under arrest pursuant to that order. 1  Deputy Kirby then advised Callahan that he wished to talk with Callahan regarding the Howell case.  Thereafter, Callahan gave four statements, two on February 22 and two on February 23.  The substance of, and the circumstances surrounding, those statements are as follows
                

In this statement, Callahan maintained that, on the night Ms. Howell disappeared, he washed clothes at a Jacksonville washateria and then went to the Jacksonville Hospital where his father was visiting his mother. Around 11:00 P.M., he left the hospital with his father and they traveled in separate vehicles to his father's house in Anniston. He remained there for the rest of the night.

(2) Callahan gave a second statement on the afternoon of February 22, beginning around 1:45 P.M. and ending at 3:25 P.M. In his statement, Callahan claimed that he was washing clothes in a Jacksonville washateria on the night of February 3 when he saw Ms. Howell, whom he had met before. They entered into a conversation, during which she stated that she was engaged to be married, and Callahan offered to rent his mobile home to her and her future husband. According to Callahan, Ms. Howell wished to view the mobile home that night. Around midnight, they left the washateria in his truck and drove to the mobile home, which was located just outside Jacksonville in rural Calhoun County. While they were at the mobile home, Callahan's estranged wife (whom he had earlier observed in an automobile outside the laundromat) came in, pointed a gun at Callahan, accused him of cheating on her, and forced him to tape Ms. Howell's hands together with tape from the kitchen cabinet. Callahan then managed to escape out the back door and leave in his truck. Shortly after completing this statement, Callahan changed portions of it to add that he had dated Ms. Howell prior to February 3 and that he and Ms. Howell were having sexual intercourse when his wife arrived at the mobile home.

This statement was given in the presence of Assistant District Attorney Joseph D. Hubbard, Deputy Kirby, Deputy Larry Amerson, and Ms. Diana Hinds, a court reporter, who subsequently transcribed the statement. Hubbard testified that, prior to any questioning, Callahan was advised of his Miranda rights by Deputy Amerson and executed a written waiver of counsel. Hubbard also stated that no one offered Callahan any reward or hope of reward in return for making a statement, nor did any one threaten Callahan in any manner to induce him to make a statement. Prior to actually giving this statement, Callahan said, "I know of my rights. I wish to give a statement at this particular time in order to help clear my own personal self."

(3) The third statement was given by Callahan around 10:15 on the morning of February 23. Earlier that morning, at Callahan's request, law enforcement officers had obtained a photograph from Callahan's This statement was made in the presence of Assistant District Attorney Hubbard, Deputy Kirby, and Sergeant Thienes. Hubbard taped this statement and it was later transcribed by Ms. Parian Tidwell, a court reporter. Hubbard testified that, prior to any questioning, Deputy Kirby advised Callahan of his Miranda rights and Callahan executed a written waiver of rights. At that point, Hubbard stated that he

father's house. In his statement, Callahan identified the girl in the photograph as one Malera Fox and asserted that she resembled Ms. Howell. According to Callahan, Mrs. Fox had once expressed interest in him, causing his wife to become jealous. He suggested that his wife mistook Ms. Howell for Mrs. Fox at his mobile home on the night of February 3.

"asked Mr. Callahan or stated to him, 'All right. Jimmy, with these rights in mind, do you wish to talk to us about what we were talking about yesterday?' And the Defendant stated, 'Yes, I'll continue talking because I'm trying to clear myself.' And I stated to the Defendant, 'All right, sir. But you voluntarily are talking to us?' The Defendant stated, quote, 'Right,' unquote. Then I asked, 'Is that correct? Okay. And you understand...

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