Carr v. State, 5 Div. 290

• Decision Date: 28 April 1989
• Docket Number: 5 Div. 290
• Parties: Keith Bernard CARR v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 820

545 So.2d 820

Keith Bernard CARR v. STATE.

5 Div. 290.

Court of Criminal Appeals of Alabama.

April 28, 1989.

C.S. Whittelsey of Whittelsey, Ray & Tipton, Opelika, for appellant.

Don Siegelman, Atty. Gen., and James B. Prude, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Keith Bernard Carr, a juvenile, was certified to stand trial as an adult for the offense of robbery in the first degree. ¹ The trial court granted the State's motion to join for trial Carr and his two adult codefendants. The consolidated cases were tried before a jury which convicted Carr of third degree robbery and acquitted the codefendants. Carr was subsequently sentenced to imprisonment for ten years, fined $1,000, and ordered to pay a victim's compensation assessment of $1,000 and court costs. Three issues are raised in this appeal from his conviction.

Around 8:40 p.m. on November 20, 1986, a black male entered the Raceway gas station and convenience store in Auburn, Alabama, and robbed the attendant, David Ehl, of $154. The robber ran out of the store and entered a waiting car from the passenger-side door. The car, which was occupied by at least one other person, then drove away. Ehl wrote down the tag number of the car and gave this information to the Auburn police. Ehl had seen the robber and another black male in the store shortly before the robbery.

Approximately ten minutes after the robbery, Auburn police officers stopped a car bearing the tag reported by Ehl. The car was occupied by three black males, with Carr seated in the rear. A $20 bill was found on the rear floor board of the car. The three black males were transported to the Raceway where Ehl identified Carr as the robber and one of the other occupants as the man who had been in the store with Carr before the robbery.

Carr and his codefendants were then taken to the Auburn Police Station. Some five hours later, Carr gave a statement in which he confessed to the commission of the robbery. Shortly thereafter he was delivered to the Lee County Youth Development Center. The intake officer instructed Carr to remove all his clothes and put on institutional garb. While doing so, Carr retrieved $134 in currency from his crotch area and handed it to an Auburn police officer who was present.

I

Carr asserts that his confession should have been suppressed due to his "minority, immaturity, intoxication, lack of education, experience, background and intelligence."

It is well settled in this state that an extrajudicial statement is presumed to be involuntary and is inadmissible at trial unless the State presents sufficient evidence to show that the statement was in fact voluntary and that the proper Miranda warnings were given. Ex parte Johnson, 522 So.2d 234 (Ala.1988); Crowe v. State, 485 So.2d 351 (Ala.Cr.App.1984), reversed on other grounds, 485 So.2d 373 (Ala.1985). When the State seeks the admission of the statement of a juvenile, the State must show that the juvenile was advised of his rights under Rule 11(A), A.R.Juv.P., rather than the standard Miranda rights of which adults are advised. See Ex parte Whisenant, 466 So.2d 1006 (Ala.1985); Scott v. State, 501 So.2d 1273 (Ala.Cr.App.1986). Rule 11(A) contains the basic Miranda warnings, plus the additional information that the juvenile has the "right to communicate with [his counsel, parent, or guardian if they are not present], and that, if necessary, reasonable means will be provided for him to do so." Rule 11(A)(4), A.R.Juv.P. See Ex parte Whisenant, supra.

Due process requires the trial court to hear evidence outside the presence of the jury in order to determine whether the statement or confession was, in fact, voluntarily made. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Miller v. Dugger, 838 F.2d 1530 (11th Cir.), cert. denied 486 U.S. 1061, 108 S.Ct. 2832, 100 L.Ed.2d 933 (1988). This determination is to be made based upon a consideration of the "totality of the circumstances." Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct. 274, 280, 4 L.Ed.2d 242, 248 (1960); Myers v. State, 431 So.2d 1342, 1345 (Ala.Cr.App.1982), writ quashed, 431 So.2d 1346 (Ala.1983).

The United States Supreme Court has specifically held that the "totality of the circumstances" test is applicable when determining the admissibility of a juvenile's confession:

"This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved. We discern no persuasive reasons why any other approach is required where the question is whether a juvenile has waived his rights, as opposed to whether an adult has done so. The totality approach permits--indeed it mandates--inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights."

Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979) (quoted in Chambers v. State, 497 So.2d 607, 609-10 (Ala.Cr.App.1986); Jackson v. State, 516 So.2d 726, 745 (Ala.Cr.App.1985)). See also Scott v. State, 501 So.2d at 1274; Whisenant v. State, 466 So.2d 995, 1000 (Ala.Cr.App.1984), reversed on other grounds, 466 So.2d 1006 (Ala.1985).

At the suppression hearing held outside the presence of the jury, Auburn Police Detective Sergeant Chris Murry testified that shortly after Carr's arrival at the Auburn Police Station he advised Carr of his rights as a juvenile from a form used by Auburn police personnel for that purpose. Carr stated that he understood these rights and executed a waiver of these rights at 9:18 p.m. Sometime during this process, Murry attempted to contact Carr's parents by telephone, but was unable to reach them. He did this because Carr was a juvenile, not because Carr asked him to do so. Murry did not question Carr regarding the robbery at the time this waiver was signed because Carr became disorderly and Murry's supervisor instructed Murry to remove Carr from the detective division. Murry took Carr to the booking room and left him there. Murry stated that, in his opinion, Carr was intoxicated at this time.

It does not appear from the record that Carr had any further contact with police officers until some three hours later. Detective William Ramsey stated that he was in the booking area around 10:30 p.m. and he observed Carr using the telephone, but he did not have any personal contact with Carr at that time. Around midnight, Detective Corporal Andy Thee went to the booking room to take Carr back to the detective division for questioning. Carr asked to use the telephone to call his mother. Thee dialed the number Carr gave him, but did not listen to the ensuing conversation. After Carr ended his call, Thee took him to an interview room in the detective division where Detective Ramsey was present.

Prior to any questioning concerning the robbery, Thee advised Carr of his rights using a form identical to the form Murry had used earlier. Carr read over this form, stated that he understood his rights and that he was willing to make a statement, and executed the waiver portion at 12:20 a.m. Thee left the interview room approximately fifteen minutes after Carr executed the waiver and did not return. At approximately 1:00 a.m., Murry joined Carr and Ramsey in the interview room, but he never informed Ramsey that he had earlier advised Carr of his rights and that Carr had executed a waiver.

Carr was questioned for approximately two hours. From 12:20 until 1:45 a.m., he essentially denied any involvement in the robbery, maintaining that the robber was his cousin. Beginning around 1:45 a.m., Carr gave an oral statement in which he admitted committing the robbery. Ramsey reduced this statement to writing, Carr read over it, acknowledged that it was correct, and signed it at 2:15 a.m. Murry transported Carr to the Lee County Youth Development Center around 3:00 a.m.

Both Thee and Ramsey testified that no reward or hope of reward was offered to Carr, and that he was not threatened in order to induce him to give a statement. Ramsey, who was present during the entire interrogation, stated that Carr never asked to stop talking or asked for his parents or a lawyer. Ramsey did testify that Carr said "he thought that [his parents] were on their way down. I let him know that as soon as they arrived that I would let him know." It is undisputed that Carr's parents did not appear at the police station that night. Murry stated that Carr did not, at any time, tell him (Murry) that he wanted to talk to his mother.

Thee testified that Carr was intoxicated at 12:20 a.m., but was not in "such a condition that he was unable to understand the questions [Thee was] asking of him." In Ramsey's opinion, Carr was "somewhat intoxicated" at this time, although he did not give Carr any tests for intoxication. Ramsey did not "have any difficulty in understanding [Carr, nor] did Carr appear to have any difficulty in understanding [Ramsey]." Carr did not appear "dizzy, disoriented, fall down, throw up or anything like that." During Murry's testimony at the suppression hearing, the following exchange occurred:

"THE COURT: When you started taking that statement, or when Mr. Ramsey started taking that statement from [Carr], around one, or whatever time it was, had he sobered up from the intoxication of earlier?

"[MURRY]: Yes, sir, he seemed to be, to know a little bit about--

"THE COURT: Sir?

"[MURRY]: He seemed to be able to comprehend a little bit more about what was going on.

"THE COURT: Was he sober at that time?

"[MURRY]: Oh, yes, sir.

"THE COURT: Do what?

"[MURRY]: He appeared to be."

Carr testified at the suppression hearing that he was drunk when he was arrested around 9:00 p.m., having consumed four or five beers and a quart of wine...