Cox v. State

• Decision Date: 08 October 1985
• Docket Number: 6 Div. 560
• Citation: Cox v. State, 489 So.2d 612 (Ala. Crim. App. 1985)
• Parties: Jeffrey Alan COX v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 612

489 So.2d 612

Jeffrey Alan COX v. STATE.

6 Div. 560.

Court of Criminal Appeals of Alabama.

Oct. 8, 1985.

Rehearing Denied Nov. 12, 1985.

Certiorari Quashed June 13, 1986

Alabama Supreme Court 85-237.

Bill Fite; Hamilton, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston III, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

Jeffrey Alan Cox was indicted and convicted for the capital murder of his grandparents. Alabama Code 1975, § 13A-5-40(a)(10). Cox waived his right to the participation of the jury in the sentence proceeding as authorized by § 13A-5-44, upon the pretrial stipulation of both the prosecution and the defense that there were no aggravating circumstances. The trial judge sentenced Cox to life imprisonment without parole.

I

The trial judge's refusal to give the defendant's requested charges instructing the jury that manslaughter was a lesser included offense was not error.

The trial judge charged on capital murder, wherein two or more persons are murdered by the defendant as charged in the indictment, and on non-capital murder as a lesser included offense of capital murder. Cox argues that "the evidence offered by the defendant was to the effect that he was not responsible for his actions, which were the product of an irresistible impulse. This and other evidence would if believed tend to negate the specific intent requisite to a charge of capital murder." Appellant's Brief, p. 60. In this case, the charges were properly refused.

"[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility." Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978). "A court may properly refuse to charge on lesser included offenses only (1) when it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) when the requested charge would have a tendency to mislead or confuse the jury." Chavers, 361 So.2d at 1107. Here, the evidence would not support a conviction for manslaughter or criminally negligent homicide.

It is undisputed that the defendant shot and killed his grandparents. The only issue was whether he acted intentionally or whether he lacked criminal responsibility for his actions because of a mental disease or defect. "A person acts intentionally with respect to a result or to conduct ..., when his purpose is to cause that result or to engage in that conduct." Alabama Code 1975, § 13A-2-2(1). "A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law." § 13A-3-1(a).

There is no evidence that the defendant acted recklessly or with criminal negligence as those terms are defined by § 13A-2-2(3) and (4). There is also no evidence that he acted in the sudden heat of passion. Consequently, there is no evidence to support a finding that the defendant is guilty of manslaughter or criminally negligent homicide. See § 13A-6-3 and § 13A-6-4. Under the evidence at trial and the theories under which the case was tried, the defendant was either guilty of an intentional killing, which meant that he could only be guilty of either capital murder or simple murder, or he was not guilty of any offense by reason of insanity. The evidence allowed no middle ground. George v. State, 240 Ala. 632, 638, 200 So. 602, 607 (1941). Instructions on manslaughter and criminally negligent homicide would only have tended to foster a compromise verdict which the law does not approve or contemplate. Edwards v. State, 33 Ala.App. 386, 387, 34 So.2d 173, 174 (1948). "A defendant is not entitled to instructions on lesser-included offenses, where his confession of the act charged was admitted, and he relied on evidence of insanity." Strong v. State, 52 Ala.App. 237, 243, 291 So.2d 325, 331 (1974). The requested instructions on the lesser included offenses of the crime of intentional murder were properly refused.

II

The defendant argues that his confessions were improperly admitted into evidence for three reasons. We disagree on each ground.

Initially, the defendant argues that the State's burden should be to prove the voluntariness of a confession beyond a reasonable doubt and to a moral certainty and not merely by a preponderance of the evidence. The Constitution of the United States only requires that, before a confession is admitted into evidence, its voluntariness must be proven by a preponderance of the evidence. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 627, 30 L.Ed.2d 618, 627 (1972). This is the standard which has been adopted in this state. "Before a confession is admissible, the trial judge must be satisfied by a preponderance of the evidence that it was voluntarily made." Ex parte Singleton, 465 So.2d 443, 445 (Ala.1985). In light of our Supreme Court's holding in Singleton, which we are bound to follow, we reject Cox's plea that we adopt the "more enlightened" rule that the voluntariness of a confession must be proven beyond a reasonable doubt.

III

The defendant also contends that, at the time he was taken into custody, there existed no probable cause for his arrest, and his confessions were obtained in violation of the Fourth Amendment of the Constitution of the United States.

Near midnight on the 29th of November, 1982, the Marion County Sheriff's Office received a telephone call from someone at the residence of Jim Cox (the defendant's father) reporting a shooting at the home of Archie and Lottie Cox (the defendant's grandparents). Sheriff Floyd Long was dispatched to the residence of Jim Cox to talk to the defendant, who had discovered the bodies of Archie and Lottie Cox.

Sheriff Long arrived at the defendant's father's house and, together with the Marion County District Attorney, Alvis E. Tidwell, questioned the defendant about the murders in the presence of the defendant's father and his stepmother. The defendant, who had been living with his grandparents, stated that he had been off hunting and had returned to find that his grandparents had been shot and killed. After discovering the bodies, the defendant drove his grandfather's truck to his father's house to report the crime. This initial questioning of the defendant lasted about fifteen minutes.

At the request of the Sheriff and the District Attorney, the defendant consented to return to his grandparents' home. At trial, the Sheriff testified that the defendant said he would "be glad to go." Prior to leaving, the Sheriff asked the defendant if he had "anything on him." The defendant indicated that he had some .22 caliber shells and gave them to the Sheriff and told him that there was a .22 caliber rifle in the truck. The Sheriff testified that suspicion had "not really" centered on the defendant: "We were still investigating, trying to find out what happened and get a story or statement from him."

Sheriff Long testified that, while en route to the victims' house, the defendant sat in the front seat of the Sheriff's car, and that he again asked the defendant "what had happened, to tell us what he found and what happened up there." The defendant repeated his story that "he had been off hunting by himself, come in and found his grandparents shot." Sheriff Long testified that he asked the defendant "if he wasn't telling me the truth" and told him that he "wished he would tell me what happened if he knew anything about it."

When the Sheriff, the District Attorney, and the defendant arrived at the grandparents' house, the Sheriff asked the defendant "if he wouldn't mind to stay in the car and let me go inside and see what happened myself." The Sheriff's car was "just a regular sedan." According to Sheriff Long, the defendant "just agreed to stay there." Sheriff Long then asked Deputy Max Brasher to watch the defendant, but no one remained at the car, although there was always an officer within sight. Hamilton Police Officer Danny Ballard testified, "We were keeping an eye on him."

Sheriff Long was a licensed mortician. He observed the bodies and concluded that they had been shot multiple times with what "appeared to be a .22 caliber-type weapon." He observed no evidence of forced entry. The Sheriff noticed that "in one of the rooms, looked like there might have been some drawers pulled out and rumpled, but not a fight or anything." The Sheriff noticed that the shells the defendant had given him earlier "looked to be the same kind" as those found at the scene. The Sheriff remained at the scene for approximately thirty minutes.

After his investigation inside the house, Sheriff Long returned to his car and informed the defendant that they needed a statement from him and that, because of the time, the "only logical place" to go was to the visiting room area of the county jail. This was discussed with the defendant who agreed to go with the Sheriff to give a statement. Sheriff Long testified that the defendant was not in custody or under arrest. The Sheriff also stated that "[a]t that time, I didn't think his story, you know, matched my thinking on what had happened."

On the way to the jail, the Sheriff asked the defendant "again ..., what had happened because as the night progressed I was not believing his story." The Sheriff asked the defendant "at least twice, ... maybe three times." On each occasion, the defendant repeated his account of having returned from hunting and having found his grandparents' bodies.

District Attorney Investigator C.J. Cox met the District Attorney and the Sheriff at the county jail and all three men questioned the defendant. The other grandson of the decedents had been questioned at the jail before the defendant. The defendant waived his Miranda rights and then...