Carroll v. State, 6 Div. 75

CourtAlabama Court of Criminal Appeals
Writing for the CourtBOWEN
Citation370 So.2d 749
Docket Number6 Div. 75
Decision Date16 January 1979
PartiesPatricia Eileen Wade CARROLL v. STATE.

Page 749

370 So.2d 749
Patricia Eileen Wade CARROLL
v.
STATE.
6 Div. 75.
Court of Criminal Appeals of Alabama.
Jan. 16, 1979.
Rehearing Denied Feb. 20, 1979.

Page 751

Randolph P. Reaves, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Larry R. Newman, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

Late in the night of October 3, 1974, the appellant shot and killed her two young children and in an apparent suicide attempt took a large quantity of prescription drugs from which she almost died. This appeal is from her conviction and life sentence in the death of two year old Monty J. Carroll, her youngest son.

I

At trial the State introduced testimony of four statements made by the appellant while she was in a hospital recovering from her attempted suicide. The appellant contends that the admission of these statements was error because the trial judge did not make a determination of voluntariness before their admission and because the appellant

Page 752

was incompetent to make a voluntary and admissible confession.

Soon after the appellant was discovered around midnight on October 3, 1974, she lapsed into a deep coma and appeared to be suffering from a "very classic drug overdose". She was taken to a local hospital where her stomach was pumped. Within hours she was transferred to the University Hospital in Birmingham, Alabama, where she was placed on an artificial kidney machine. Within thirteen hours after her admission to the University Hospital, the appellant "began to be rousable". On October 5th, she was able to breathe on her own and dialysis was discontinued. The appellant remained in the intensive care unit until she was "physically stable" and on October 8th she was transferred to the psychiatric ward. During the time spent in intensive care the appellant received no drug which would "alter her mental state". The appellant remained in the psychiatric ward for approximately one month.

At trial the defense presented expert testimony that the appellant had no recollection of what had happened from the early evening of the day of the murders until waking up in the hospital. A psychiatrist testified that only under the influence of sodium amytal, a powerful sedative, was the appellant able to recall any facts surrounding her drug overdose or the deaths of her children. Another psychiatrist testified that the appellant suffered a "relative kind of amnesia" and that in relative amnesia there could be "patches of memory". This psychiatrist also testified that the appellant appeared not to know what had happened and was "groping for memory".

A.

While the appellant was in intensive care, Diane Ballard, who characterized herself when asked as the appellant's "best friend in Birmingham", came to visit her. From the record objection to the first statement appears.

"Q. (Assistant District Attorney): What was the first thing either you or she said when you went in that room?

"MR. HARD (Defense Counsel): May we approach the bench, Your Honor?

"THE COURT: Yes.

(Whereupon, an off the record discussion was then had at the bench.)"

"Q. Go ahead.

"MR. HARD: For the record, I would like to object on two grounds. Number one, Mr. Barber's own evidence discloses that the Defendant was in the intensive care at the University Hospital.

"I personally, tomorrow, Thursday or whenever we get into it, will proffer to the Court evidence that she was under medication at that very time 1, and suggest to the Court that whatever she said at that time was not volitional, that she could not be held responsible for what was said on that particular occasion.

"And secondly, as the Court knows, these statements were not made under oath in court. They are extrajudicial statements, and they are hearsay. And I object to them on that ground.

"THE COURT: All right. Overruled.

"MR. HARD: We respectfully except, Your Honor.

"THE COURT: All right."

After relating the general conversation had with the appellant, Mrs. Ballard testified:

"Well, she asked me then had I seen Max (the appellant's former husband and the father of her two deceased children). And I told her yes, that I had. And she asked me how he was doing."

"Uh huh. And I told her yes, that I had seen him, and that he was in real bad shape, that he was just real bad off, that I had seen him at the funeral home.

Page 753

"And she said well, I hope it drives him crazy. That's all she said then."

There was no further objection or motion to exclude this testimony.

It is settled in Alabama that admissions relating directly to the facts or circumstances of the alleged crime and connecting the defendant therewith are inculpatory admissions in the nature of a confession and subject to the same rules as direct confessions. Reeves v. State, 260 Ala. 66, 73, 68 So.2d 14 (1953); Campbell v. State, 341 So.2d 735, 740 (Ala.Cr.App.), affirmed, 341 So.2d 742 (Ala.1976); Kendrick v. State, 55 Ala.App. 11, 312 So.2d 583 (1975). Admissions as to purely collateral matters, which are not confessory of guilt in any respect, are not within the scope of this rule, and the predicate as for a confession need not be laid. Tillison v. State, 248 Ala. 199, 27 So.2d 43 (1946); Herring v. State, 242 Ala. 85, 5 So.2d 104 (1942); Twymon v. State, 358 So.2d 1072 (Ala.Cr.App.1978); Campbell v. State, 341 So.2d at 740; C. Gamble, McElroy's Alabama Evidence § 200.02(4)(e) (3rd ed. 1977). The appellant's statement that she hopes "it" drives her former husband crazy cannot be construed as a confession or an admission of guilt. It does not tend to incriminate or connect her with the murder of her child. Therefore the State was not required to prove that the admission was voluntary and the trial judge had no duty to determine its admissibility. The objection of defense counsel is not well taken.

B.

Several days later, either the first or second day after the appellant had been transferred to the psychiatric ward, the appellant called Mrs. Ballard on the telephone. Either that night or the next Mrs. Ballard went to see the appellant. Defense counsel again objected to the contents of any conversation between the two women.

"Q. Do you recall the subject matter of that conversation?

"MR. HARD: I would like for the record to state that I just think it's inherently distastful to have the statement of a patient in the psychiatric ward admitted into a court of law as proper evidence. And I would like to object to it.

"THE COURT: Have you got any doctors coming from the psychiatric ward?

"MR. HARD: Yes, sir, I do.

"MR. BARBER: Your Honor, by nature of the course that any criminal trial takes, I didn't arrange it. And I imagine it was arranged a long time before you or I were here.

"The State has the burden of meeting the proof in a case. For that reason the State puts on their evidence first. And whatever evidence that the Defense has that it feels like is in defense of the matter, just by our system must come second.

"MR. HARD: Your Honor, some matters are proper for the State to put on in rebuttal as opposed to being put on in the case in chief. And I submit to the Court that this is the very type of subject matter that we should not be going into in the State's case in chief.

"THE COURT: May I speak to the two lawyers.

(Whereupon, an off the record discussion was then had at the bench.)

"THE COURT: Proceed, Mr. Barber."

Mrs. Ballard testified that she talked to the appellant for about one and one half hours. For the first hour it was "just mostly general small talk". Then the appellant "wanted to talk about the children" and "got emotional".

"Q. Do you recall what was said by either of you about the children?

"A. She was asking me about the funeral and how the children looked and what they were dressed in, and if they, you know, if they looked good. She wanted to know if everything was done right at the funeral.

"And then she got real upset. And she told me that she missed them. And then she said this is not the way things are supposed to be. She said I'm supposed to be dead with my children. I'm supposed

Page 754

to be with my children instead of up here. And the rest of it was just more or less

"I told her if she wanted to cry, you know, that she could cry to me. And it was just the rest of it was more or less She was just upset the rest of the night."

Again there was no further objection or motion to exclude this testimony.

This second statement was certainly no admission by the appellant that she killed her children or in any way harmed them only that she was supposed to have died with them. While there are certain facts which tend to indicate that the confession was voluntary 2, we need not make that determination. Here, as in Allred v. State, 55 Ala.App. 74, 313 So.2d 195, cert. denied, 294 Ala. 751, 313 So.2d 203, cert. denied, 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86 (1975), we cannot say that the evidence indisputably establishes the strongest probability of appellant's insanity or incompetency 3.

Even assuming that this statement was an inculpatory admission requiring the laying of a predicate, we do not consider its admission error in view of the prior admission of the suicide letter written by the appellant and to which defense counsel specifically stated that he had "no objection". That letter reads:

"Dear Mother & Daddy,

"I'm sorry to do this to you'all but I can't take this life any more. I'm taking my boys with me. Please put one on my right and one on my left side. I love my boys and hope God forgives me and lets me be with them. I know in my heart that my boys will be with God. God please forgive me for I have sined.

I love you Mother & Daddy

Eileen

"Please dress the boys in blue they look good in it. Please put me between them I love them and want them to be in heven Gods heven. Please put with Monty Jay his night night & blanket one that Mom made.

"Please put with Jeff his little tiger that he got on his first Christmas on my bed.

"Read later

"Mother & Daddy

...

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43 practice notes
  • Albarran v. State Of Ala., CR-07-2147
    • United States
    • Alabama Court of Criminal Appeals
    • February 25, 2011
    ...279 So. 2d 478 (1973); Lokos v. State, 434 So. 2d 818 (Ala. Crim. App. 1982), affirmed, 434 So. 2d 831 (Ala. 1983); Carroll v. State, 370 So. 2d 749 (Ala. Crim. App.), cert. denied, 370 So. 2d 761 (Ala. 1979). To lay a proper predicate for the admission of such an opinion, a witness must fi......
  • Carpenter v. State, 4 Div. 776
    • United States
    • Alabama Court of Criminal Appeals
    • January 20, 1981
    ...Anderson pertaining to her statements. Constitutional rights may be waived where there is no objection. Carroll v. State, Ala.Cr.App., 370 So.2d 749, cert. denied, Ala., 370 So.2d 761 (1979); McBride v. State, Ala.Cr.App., 355 So.2d 750 (1978). However, we would point out that, while Sherif......
  • Bracewell v. State, 4 Div. 981
    • United States
    • Alabama Court of Criminal Appeals
    • May 31, 1983
    ...not be disturbed absent a clear abuse of that discretion. Carmichael v. State, 48 Ala.App. 748, 267 So.2d 538 (1972); Carroll v. State, 370 So.2d 749, 760 (Ala.Cr.App.), cert. denied, 370 So.2d 761 (Ala.1979); Jolly v. State, 395 So.2d 1135, 1143 (Ala.Cr.App.1981). There is no clear abuse i......
  • Wesley v. State, 1 Div. 863
    • United States
    • Alabama Court of Criminal Appeals
    • December 29, 1989
    ..."[E]xpert witnesses, even physicians, cannot testify to the opinions of others in giving their opinions." Carroll v. Page 115 State, 370 So.2d 749, 758 (Ala.Cr.App.), cert. denied, 370 So.2d 761 On continuing cross-examination of Dr. Nagi, defense counsel questioned Dr. Nagi about his opini......
  • Request a trial to view additional results
43 cases
  • Albarran v. State Of Ala., CR-07-2147
    • United States
    • Alabama Court of Criminal Appeals
    • February 25, 2011
    ...279 So. 2d 478 (1973); Lokos v. State, 434 So. 2d 818 (Ala. Crim. App. 1982), affirmed, 434 So. 2d 831 (Ala. 1983); Carroll v. State, 370 So. 2d 749 (Ala. Crim. App.), cert. denied, 370 So. 2d 761 (Ala. 1979). To lay a proper predicate for the admission of such an opinion, a witness must fi......
  • Carpenter v. State, 4 Div. 776
    • United States
    • Alabama Court of Criminal Appeals
    • January 20, 1981
    ...Anderson pertaining to her statements. Constitutional rights may be waived where there is no objection. Carroll v. State, Ala.Cr.App., 370 So.2d 749, cert. denied, Ala., 370 So.2d 761 (1979); McBride v. State, Ala.Cr.App., 355 So.2d 750 (1978). However, we would point out that, while Sherif......
  • Bracewell v. State, 4 Div. 981
    • United States
    • Alabama Court of Criminal Appeals
    • May 31, 1983
    ...not be disturbed absent a clear abuse of that discretion. Carmichael v. State, 48 Ala.App. 748, 267 So.2d 538 (1972); Carroll v. State, 370 So.2d 749, 760 (Ala.Cr.App.), cert. denied, 370 So.2d 761 (Ala.1979); Jolly v. State, 395 So.2d 1135, 1143 (Ala.Cr.App.1981). There is no clear abuse i......
  • Wesley v. State, 1 Div. 863
    • United States
    • Alabama Court of Criminal Appeals
    • December 29, 1989
    ..."[E]xpert witnesses, even physicians, cannot testify to the opinions of others in giving their opinions." Carroll v. Page 115 State, 370 So.2d 749, 758 (Ala.Cr.App.), cert. denied, 370 So.2d 761 On continuing cross-examination of Dr. Nagi, defense counsel questioned Dr. Nagi about his opini......
  • Request a trial to view additional results

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