Carpenter v. State

• Decision Date: 15 May 1973
• Docket Number: 8 Div. 288
• Citation: 50 Ala.App. 543,280 So.2d 804
• Parties: Andrew L. CARPENTER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 804

280 So.2d 804

50 Ala.App. 543

Andrew L. CARPENTER v. STATE.

8 Div. 288.

Court of Criminal Appeals of Alabama.

May 15, 1973.

Rehearing Denied June 12, 1973.

Watts, Salmon, Roberts & Stephens and Frank K. Noojin, Jr., Huntsville, for appellant.

William J. Baxley, Atty. Gen., and Samuel L. Adams, Sp. Asst. Atty. Gen., Dothan, for the State.

L. S. MOORE, Supernumerary Circuit Judge.

The indictment charged the appellant with unlawfully possessing heroin. His trial under said indictment resulted in a verdict of guilty as charged. Judgment was entered by the trial court sentencing the appellant to imprisonment in the State pentientiary for fifteen years. In addition, the trial judge imposed a fine of $20,000.00. The appellant's motion for a new trial was overruled by the trial court. Hence, this appeal.

Prior to appellant's arrest, a search warrant was issued authorizing the search of appellant's apartment and of the appellant for certain prohibited drugs. In connection with the execution of this search warrant, Bobby Eddy, a Deputy Sheriff of Madison County, testified in substance that he went to the appellant's apartment on August 28, 1971, at 11:05 P.M., to serve and execute the search warrant; that he knocked on the door and 'it was answered by a red-headed girl whom (he) knew to be Terry Young;' that before they opened the door they asked him who he was; that he replied that he was Bob Eddy with the sheriff's office; that the girl opened the door which had a night latch on it; that upon seeing him she 'started to slam the door back' and that he then knocked the door down with his shoulder and went inside the apartment; that he showed the search warrant to the appellant and appellant read it; that he searched the appellant and took from his front pocket nine packets of a powder material wrapped in a small cellophane bag; that he found one yellow pill on the floor in the living room, eleven pills in a wooden box on the end table, two spoons on the dresser in the bedroom, and a syringe in a pile of clothes in the hall; that he placed appellant under arrest and advised him of his rights there at the apartment; and that from a card which he carried with him he read to appellant the warnings set out in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The witness was then asked this question and made the following response:

'Q. Would you read from it, the same thing that you read to Mr. Carpenter that night?

'A. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and have him present with you while you are being questioned. If you cannot afford to hire a lawyer one will be appointed to represent you before any questioning if you wish one. Do you understand these rights? Do you understand these rights? He answered in the affirmative. I also advised him that any time that he made a statement any time that he wanted to stop he could do so.'

This witness further testified that the appellant did not make any statement at the apartment but that after he was arrested and taken to jail, about one hour and fifteen minutes after his arrest, appellant made a statement to him; that the appellant and that witness were alone in the interrogation room at the jail when the appellant made a statement; that the appellant in said statement stated he did not know where the nine packets came from; that he knew it was there but that it belonged to someone else; that the only warning as to his rights that he gave appellant was at the time of his arrest at the apartment; that he did not again warn him at the jail; that appellant never told him he did not want a lawyer; that he did not tell the appellant that he had a right to have a lawyer present when he interrogated him at the jail or that he had a right to remain silent; and that the appellant did not tell the witness that he wished to waive his right to remain silent.

The appellant objected to the admission of said statements on the basis of the above evidence and, that being overruled by the trial court, the appellant reserved an exception.

No formal predicate was laid for the admission of said statement. The witness was not asked if he threatened or abused the appellant to get him to make a statement or if he offered him any hope of reward. The other elements of a formal predicate for its admission were not laid, nor was any witness questioned concerning the voluntariness of the statement.

The State Toxicologist testified that he examined the material seized and in his opinion it was heroin.

The warning given by Officer Eddy to the appellant was sufficient. Davidson v. State, 48 Ala.App. 446, 265 So.2d 888, cert. denied 289 Ala. 741, 265 So.2d 897; Moon v. State, 48 Ala.App. 127, 262 So.2d 615; Embrey v. State, 283 Ala. 110, 214 So.2d 567.

We are, however, concerned with the question of whether appellant waived the constitutional rights he was warned about. In Miranda, supra, the Supreme Court of the United States made the following statements of the law:

'. . . This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, 146 ALR 357 (1938), and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.

'An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. . . .

". . . The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'

'. . . Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. . . .'

Prior to the above assertions in Miranda, supra, the Court said:

'. . . As we have stated before, 'Since Chambers v. Florida, 309 U.S. 227 (60 S.Ct. 472, 84 L.Ed. 716), this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition.' Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 279, 4 L.Ed.2d 242, 247 (1960). . . .'

Mere silence after a warning is not a waiver. The simple fact that a statement was eventually obtained by incustody interrogation is not a waiver. And that is all we have in the case at bar. The evidence does not at any point show that the appellant said he did not want an attorney nor did he say that he was willing to make a statement. There is no question as to this being an in-custody interrogation.

In connection with the admission of the inculpatory statements of the appellant, there is another matter which we shall now consider and that is the question of its voluntariness. In Daugherty v. State, 24 Ala.App. 591, 139 So. 439, it is stated:

'. . . The general rule, as laid down in Greenleaf on Ev. (16 Ed.) pp. 346, 347, to the effect that inculpatory admissions not amounting to specific...