D.M.M. v. State

• Decision Date: 17 June 1994
• Parties: D.M.M. v. STATE. CR 93-486.
• Court: Alabama Court of Criminal Appeals

Page 57

647 So.2d 57

D.M.M. v. STATE.

CR 93-486.

Court of Criminal Appeals of Alabama.

June 17, 1994.

Rehearing Denied Aug. 19, 1994.

Certiorari Denied Oct. 7, 1994

Alabama Supreme Court 1931724.

Joe W. Morgan, Jr., Birmingham, for appellant.

James H. Evans, Atty. Gen., and Gregory O. Griffin, Sr., Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

This is the appeal from the order of the Juvenile Court of Jefferson County transferring D.M.M., ¹ a juvenile, to circuit court for criminal prosecution as an adult on a charge of capital murder in the death of Corey Denson in violation of Ala.Code 1975, § 13A-5-40(a)(17). The appellant raises three issues on this appeal.

I.

The appellant contends that the juvenile court erred in admitting his statement into evidence at the transfer hearing because "he asked to communicate with his mother, as was his right under law, and he was denied that right."

The homicide occurred on September 22, 1993. The appellant gave two statements to the police regarding the homicide. On September 27, 1993, he signed printed waiver of rights forms at 12:45 p.m. and at 2:10 p.m. (C.R. 33, 34) and gave a statement denying any involvement in the homicide. The appellant's mother was present when this statement was made. He was released after making that statement.

The next day, the police arrested the appellant at Phillips High School and brought him to the Police Administration Building. The appellant gave a second statement on September 28, 1993, after signing a printed waiver of rights form at 2:25 p.m. C.R. 35. There was testimony that the police contacted the appellant's mother before they questioned the appellant and that the mother refused to come or to allow the police to bring her to the Police Administration Building. The evidence was conflicting about whether the appellant requested his mother's presence before making this statement.

A large portion of the conflict and the controversy centers around the following statements, which appear at the end of the appellant's second statement to the police:

"Q. ( [Birmingham Police Detective] Pressley) Okay, you know we read you your rights earlier, is that correct?

"A. [Appellant] Yes sir.

"Q. Ah, earlier on, we tried to contact your mother, Sergeant Moorer called your mother, right?

"A. Yes sir.

"Q. Cause you're a juvenile, you wanted your mother here?

"A. Yes sir.

"Q. And ah, your mother said she wasn't coming, is that correct, Sergeant Moorer?

"A. (Moorer) Yes.

"Q. (Pressley) Even though your mother didn't come up here, you still wish to talk to us, is that correct?

"Q. (Moorer) You don't want to talk to your momma?

"A. Oh, Yeah, I want to talk to her, yes sir.

"Q. Okay, she said she would be over to juvenile to talk to you.

"Q. (Pressley) And you still made a statement to us, is that correct, you still made a statement to us, is that correct?

"A. About what?

"Q. About what happened?

"A. Yes sir.

"Q. This been a true statement to the best of your knowledge, has this been a true statement to the best of knowledge?

"A. True.

"Q. Yeah, has this been true what you told us?

"A. Yes sir.

"Q. Ah, did anybody promise you anything to make this statement, like offer you any money or lesser sentence or anything like that to make this statement?

"A. No sir.

"Q. (Moorer) this concludes the statement, time now is 2:43." C.R. 40-41.

At the transfer hearing, Birmingham Police Detective Andre Pressley testified that the appellant did not request that his mother be present until the end of the second statement as reflected above. Pressley testified that his reason for the above colloquy was:

"That we [were] trying to contact his mother. And prior to the other day, during the first day, we had his mother present. And I was just asking him that question just to see if he still wanted his mother here even though the fact that we had told him before that his mother wasn't coming." R. 232.

The juvenile court judge initially denied the appellant's motion to suppress, finding that the "statement ... was not illegally obtained" and that "the police did more than they had to do to try to get [D.M.M.'s] parents there." R. 163-64. Subsequently, the judge withdrew that ruling in order to "get some more testimony on" when the appellant requested his mother's presence. R. 179. After further testimony, the judge denied the appellant's motion to suppress with the following comments:

"All right. On the motion to suppress, I think with some explanation [the additional testimony] helped and then it didn't help.... But I will say to you that what I had ruled before was that the testimony was in conflict about whether he [the appellant] asked for his mother or not. I now have two law enforcement officers saying he did not. He says he did. Somewhere in here his mother told someone--or they called her. I don't know. But if he didn't ask for her then the right--it's his right you understand. And I do believe his rights were given to him.

"So, I'm going to deny your motion to suppress although there is general confusion about memory of where people were, where they physically were that day. I don't see anything, even in his sitting in there and falling asleep for a couple of hours [at the Police Administration Building], that would make it inadmissible. It's not that someone has coerced him, it's not that someone's done things to him while he was there. So, I don't know. Obviously, Detective Pressley's testimony is confusing because it changed a whole lot. But he was clear on the fact that he did not ever ask for his mother. And, frankly, he doesn't remember him asking for his mother the first day. Although they did go get her and did call her apparently or go by the second day. I tend to think they didn't go by the second day. I think it was a telephone call." R. 243-44.

Rule 11(A)(4), A.R.Juv.P., provides: "When [a] child is taken into custody," and "his counsel, parent, or guardian is not present, [the child] has a right to communicate with them, and that, if necessary, reasonable means will be provided for him to do so." In E.C. v. State, 623 So.2d 364 (Ala.Cr.App.1992), this Court recently addressed the issue of a juvenile's right to communicate with his parent prior to custodial interrogation by a law enforcement officer.

"The legal principles applicable to the fourth warning (right to communicate with parent) are the same as those applicable to the first three warnings (right to silence and to counsel). See Ex parte Whisenant, 466 So.2d [1006, 1007 (Ala.1985) ]. See also Atchison v. State, 565 So.2d 1186, 1188 (Ala.Cr.App.1990) (referring to the rights enumerated in Rule 11 as 'super-Miranda rights'). '[E]ach of the four requisites [in Rule 11(A) ] stands on the same footing.' Ex parte Whisenant, 466 So.2d at 1007. There is no 'rational basis for distinguishing the treatment of th[e] fourth warning from that accorded the first three.' Id.

"Invocation of the juvenile right to parental communication is governed by the same standard as invocation of the Miranda right to counsel. See L.J.V. v. State, 545 So.2d 240 (Ala.Cr.App.1989). 'Analogously to the right to see counsel, if a juvenile indicates, in any manner, that he wishes to talk to a parent, the interrogation must immediately cease.' L.J.V. v. State, 545 So.2d at 245. See also Smith v. State, 484 So.2d 560, 561 (Ala.Cr.App.1986).

"....

" 'The rationale of courts holding a child's request to see a parent equivalent to a request to see an attorney, ... is that, while an adult in trouble normally requests an attorney's assistance, a child logically expresses his desire for help and his unwillingness to proceed alone by requesting a parent's presence.... [I]n the case of a child, the right to assistance of counsel is hollow unless a parent is present, for a parent is normally the child's only avenue through which to evaluate and exercise the right to counsel.'

"[Samuel M. Davis, Rights of Juveniles § 3.13 at 3-64.5 (2d ed 1991) ]."

E.C., 623 So.2d at 367-68.

Applying those principles to this case and based on the conflicting evidence of voluntariness presented in the record, we find that the juvenile court judge did not abuse her discretion in determining that the appellant's statements were voluntary and admissible.

" 'The State has the burden of proving that the defendant's confession was voluntary. Whether a confession is voluntary is determined by an examination of the totality of the circumstances surrounding the giving of the confession.' Carden v. State, 612 So.2d 506, 508 (Ala.1992). 'It is well settled in this Court that "[e]xtrajudicial confessions are prima facie involuntary and inadmissible, and [that] the burden is on the State to prove that the confession was made voluntarily." Ex parte Callahan, 471 So.2d 463, 464 (Ala.1985).' Ex parte Matthews, 601 So.2d 52, 53 (Ala.), cert. denied, [---] U.S. [----], 112 S.Ct. 2996, 120 L.Ed.2d 872 (1992). 'When there is conflicting evidence of the circumstances surrounding an incriminating statement or a confession, it is the duty of the trial judge to determine its admissibility, and if the trial judge decides it is admissible his decision will not be disturbed on appeal "unless found to be manifestly contrary to the great weight of the evidence." ' Ex parte Matthews, 601 So.2d at 53. See also Ex parte Woods, 592 So.2d 636, 637-38 (Ala.1991). ' " 'Where the evidence of voluntariness is conflicting, and even where there is credible testimony to the contrary, the trial judge's finding of voluntariness must be upheld unless palpably contrary to the weight of the evidence.' " ' Dixon v. State, 588 So.2d 903, 908 (Ala.1991), cert. denied, [---] U.S. [----], 112 S.Ct. 904, 116 L.Ed.2d 805 (1992).

" 'In weighing the evidence of voluntariness and involuntariness, the trial judge was presented with a question of credibility. Player v. State, 421 So.2d 1338, 1343 (Ala.Cr.App.1982). "Where the voluntariness inquiry presents conflicting evidence and...