Centobie v. State

• Decision Date: 31 August 2001
• Citation: 861 So.2d 1111
• Parties: Mario CENTOBIE v. STATE.
• Court: Alabama Court of Criminal Appeals

861 So.2d 1111

Mario CENTOBIE v. STATE.

CR-98-2056.

Court of Criminal Appeals of Alabama.

August 31, 2001.

Rehearing Denied November 21, 2001.

Gail Dickinson, Pell City, for appellant.

William H. Pryor, Jr., atty. gen.; and J. Clayton Crenshaw and James R. Houts, asst. attys. gen., for appellee

McMILLAN, Presiding Judge.

The appellant, Mario Centobie, was charged with capital murder for intentionally causing the death of Officer Keith Turner, a police officer, while he was on duty, see § 13A-5-40(a)(5), Ala.Code 1975. On the appellant's motion for a change of venue, venue was changed from St. Clair County to Elmore County. After testifying in his own behalf and admitting to having committed all of the elements of the charged offense, the appellant was found guilty as charged. Following a sentencing hearing, the jury returned an advisory verdict recommending death by electrocution. The final sentencing hearing was held before the trial court, which accepted the jury's recommendation and sentenced the appellant to death by electrocution.

On appeal from his conviction, the appellant raises 17 issues, many of which he did not raise by timely objection in the trial court. Because the appellant was sentenced to death, his failure to object at trial does not bar this Court's review of these issues; however, it does weigh against any claim of prejudice he now raises on appeal. See Whitehead v. State, 777 So.2d 781 (Ala.Crim.App.1999); Dill v. State, 600 So.2d 343 (Ala.Crim.App.1991), aff'd, 600 So.2d 372 (Ala.1992), cert. denied, 507 U.S. 924, 113 S.Ct. 1293, 122 L.Ed.2d 684 (1993); Kuenzel v. State, 577 So.2d 474 (Ala.Crim.App.1990), aff'd, 577 So.2d 531 (Ala.), cert. denied, 502 U.S. 886, 112 S.Ct. 242, 116 L.Ed.2d 197 (1991).

Rule 45A, Ala.R.App.P., provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

This court has recognized that "`the plain error exception to the contemporaneous objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result."'" Whitehead v. State, supra, at 794, quoting Burton v. State, 651 So.2d 641, 645 (Ala.Crim.App.1993), aff'd, 651 So.2d 659 (Ala.1994), cert. denied, 514 U.S. 1115, 115 S.Ct. 1973, 131 L.Ed.2d 862 (1995).

A summary of the facts surrounding this offense is set out in the trial court's sentencing order and findings of fact, issued pursuant to § 13A-5-47(d), Ala.Code 1975. That order states, as follows:

"On the 25th day of June, 1998, Sheriff Maurice Hooks of Jones County Mississippi and an assistant, Ray Butler, were transporting Mario Centobie and Jeremy Granberry from Parchman Prison to court hearings in Jones County. In the small town of Richland, Mississippi, Hooks stopped to allow the inmates to use the restroom and Hooks and Butler were overpowered by the two inmates. Centobie pulled Hooks's Ruger.45 automatic pistol from his holster and forced Hooks and Butler at gunpoint to an isolated area where they were both left tied to poles. Centobie kept Hooks's .45 Ruger as he and Granberry fled the area in Hooks's marked sheriff's car, which coincidentally, was without a rear bumper due to an earlier accident involving Sheriff Hooks.

"Several hours later in the evening hours of June 25th Capt. Cecil Lancaster of the Tuscaloosa Police Department was returning home after attending a meeting after work. He noticed Hooks's marked patrol car being driven by two individuals proceeding on I-359. The fact that the marked vehicle had no bumper or tag attracted Lancaster's attention. As the vehicle passed, Lancaster's suspicions were further raised by the fact that neither occupant of the vehicle acknowledged him. Lancaster pulled the vehicle over. As he approached the vehicle shots were fired by one of the occupants from within the vehicle through the back driver's side window striking Lancaster twice. The bullets fired into Lancaster were consistent with having been fired from the .45 Ruger belonging to Sheriff Hooks. While Lancaster lay on the ground, after being shot, the vehicle began to back up as if to run over him. He managed to fire shots into the rear window of the vehicle, which then immediately fled the scene.

"After shooting Officer Lancaster, Centobie and Granberry then abandoned the Sheriff's patrol vehicle and stole a 1981 Mercury vehicle belonging to Brandon Blake from Marguerite's Lounge in Tuscaloosa.

"On June 27th, at about 10:30 P.M. Lori Mullins, working Central Dispatch and 911, received a radio transmission from Officer Keith Turner who was on duty in a marked Moody patrol car, that Turner had stopped a vehicle. Inside Blake's stolen vehicle Centobie told his companion Granberry `I ain't going back to Parchman.' As Centobie exited the vehicle he placed the .45 against the back of the front seat and left the door open. Centobie approached Turner. After Turner asked Centobie, `Hey, what are y'all doing?' Centobie returned to the front seat of the vehicle under the guise of getting his license and registration. Turner continued to approach the vehicle and when he was next to Centobie and the vehicle, Granberry jumped from the vehicle. Centobie pulled the .45 and shot Turner three times. One shot lodged in Turner's vest, one shot hit Turner in the hip area, and a third shot was fired directly into the back of Turner's head. Turner's death was immediately caused by the fatal shot to the back of the head.

"After fleeing the area of the shooting, Centobie avoided an extensive manhunt for several days. On July 4th, Centobie kidnapped Daniel Alexander in the parking lot of a small store at about 9:30 P.M. in order to effect his escape from the Moody area. After kidnapping Alexander, Centobie forced him to drive to Mobile. Alexander escaped from Centobie at a rest area near the Alabama Mississippi state line west of Mobile and alerted law enforcement to Centobie's presence in the area. Centobie was finally captured by Mississippi authorities on July 5, 1998. Lt. Obie Wells found Centobie riding in a van on I-10 near Biloxi. At the time of his capture, Centobie was still armed with Sheriff Hooks's .45 Ruger."

I.

The appellant argues that his constitutional rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution were violated by the trial court's admission into evidence of his confession, made following his capture in Pascagoula, Mississippi. Specifically, he alleges that his confession was obtained through custodial interrogation, and that before the interrogation, he had requested and been denied an attorney. The appellant further argues that the erroneous admission of his confession, which he says was not voluntary and knowing, prejudiced him at trial. In support of his argument, the appellant relies on the court reporter's transcription, recorded during the suppression hearing, which, he argues, indicates that he had requested an attorney before his interrogation and subsequent confession. Specifically, he alleges that the following excerpt based on the transcription of the audiotape made by Agent Borghini, indicates that he had requested an attorney:

"[Agent Borghini]: And you wish to stop answering questions and request a lawyer?

"[Centobie]: (Inaudible response.)"

This Court has stated:

"It has long been the law that a confession is prima facie involuntary and inadmissible, and that before a confession may be admitted into evidence, the burden is upon the State to establish voluntariness and a Miranda predicate. Jackson v. State, 562 So.2d 1373, 1380 (Ala.Crim.App.1990). A two-pronged test is used to determine whether an accused's statement is admissible. First, the trial court must determine whether the accused was informed of his Miranda rights. Second, the trial court must determine whether the accused voluntarily and knowingly waived his Miranda rights before making his statement. Holder v. State, 584 So.2d 872, 878 (Ala.Crim.App.1991); Carpenter v. State, 581 So.2d 1277, 1278 (Ala.Crim. App.1991)."

Wigfall v. State, 710 So.2d 931, 934-35 (Ala.Crim.App.1997).

At the suppression hearing, Investigator Michael Manlief, an Alabama State Trooper assigned to the criminal investigative division of the Alabama Bureau of Investigation, testified that he and Federal Bureau of Investigation ("FBI") Agent Lawrence Borghini, along with FBI Special Agent Ricky Maxell and Jackson County Sheriff's Deputy Rob Carew, had interviewed the appellant on July 5, 1998, in a Pascagoula, Mississippi, jail. Investigator Manlief stated that an audiotape was made of the appellant's interrogation; the interrogation lasted approximately four hours. He testified that the tape was originally inserted in the wrong direction, and that by the time the error was corrected and the tape had been restarted (approximately 15 seconds), Agent Borghini and the appellant were in the middle of the Miranda warnings. Cf. Smith v. State, 756 So.2d 892, 931 (Ala.Crim.App.1997) (The officer's failure to record that portion of the interrogation when he advised the appellant of his Miranda rights would not render the statement inadmissible. Rather, it would be taken into consideration by the jury in determining the weight and credibility to assign to the officer's testimony regarding the appellant's confession.). Investigator Manlief testified that Agent Borghini informed the appellant of his Miranda rights and that the appellant indicated that he understood his rights and agreed to speak to them. He further testified that the appellant knowingly and voluntarily signed a waiver of rights form. He testified that the appellant was not threatened, coerced, or...