Dannelly v. State

• Decision Date: 17 August 1971
• Docket Number: 2 Div. 57
• Citation: 47 Ala.App. 363,254 So.2d 434
• Parties: William Edward Ashby DANNELL, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 434

254 So.2d 434

47 Ala.App. 363

William Edward Ashby DANNELL, Jr. v. STATE.

2 Div. 57.

Court of Criminal Appeals of Alabama.

Aug. 17, 1971.

Rehearing Denied Sept. 14, 1971.

Pitts, Pitts & Thompson, Selma, L. Y. Sadler, John Godbold, Camden, for appellant

William J. Baxley, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

CATES, Judge.

First degree murder (for killing his father): sentence, life imprisonment. In addition to the general issue the defendant also pled not guilty by reason of insanity.

I

The defense moved for a change of venue because of: (1) the deceased's prominence in Wilcox County; (2) the alleged abnormal newspaper and television publicity as to the killing; (3) the assignment (before formal arrest) of a highway patrolman to attend the defendant; and (4) the publication 'by various news media desseminated in Wilcox County' of the report of Bryce Hospital's lunacy commission.

This motion was overruled after a lengthy hearing. This ruling is the defendant's first claim of error.

The State in brief cites Ala. Digest, Criminal Law, k134(1) as well as Tiner v. State, 271 Ala. 254, 122 So.2d 738 for the proposition that the defense has the burden to prove to the court's reasonable satisfaction that an impartial trial cannot be had in the circuit court to which the indictment is returnable.

We note that the publicity cited in (2), (3) and (4) above was fairly well shown to have been also disseminated in the adjoining counties. 'Modern' communications no doubt have created the perplexity of where venue can be changed to.

In the instant case both parties adduced proof pro and con as to the possibility of a fair trial in Wilcox County. In this posture we find no abuse of judicial discretion in the trial judge's ruling on the motion to change venue.

Also, we call attention to the fact that trial was delayed until September 29 whereas the deceased was killed some nine months beforehand, i.e., January 5, 1969. The passage of time cannot be ignored as a factor in bringing objectivity to the trial.

II

The second contention involves the applicability vel non of the exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. This entails an analysis of the factual setting.

The State offered in evidence a shotgun which a toxicologist opined had fired at least one spent shell found on the roadside leading from the deceased's home toward Camden, the county seat. The gun undisputedly belonged to the defendant.

The deceased was shot five times. He was found in bed at his home clad in pajamas. The Sheriff looking for guns asked the defendant if there were any other guns in the house. The defendant said, 'Yes, sir, my gun.' With that he handed the Sheriff the shotgun of instant concern.

As was said by Judge Harwood in Kelley v. State, 39 Ala.App. 572, 105 So.2d 687:

'A search implies a probing into secret places for that which is hidden, People v. Exum, 382 Ill. 204, 47 L.Ed.2d 56; it implies force, actual or constructive, Combest v. State, 32 Okl.Cr. 47, 239 P. 936; or a forcible dispossession of the property of the owner by exploratory acts.'

Certainly here there was no search. The seizure of the gun came about by a voluntary manual delivery of it by the defendant. We find no error.

III

The third contention is posed as:

'The court committed reversible error in allowing the defendant's uncle to testify as to a confession which was made at Bryce Hospital.'

The defendant, under Code 1940, T. 15, § 425, was sent to Bryce Hospital. There he remained under observation from January 28 until August 14, 1969.

June 18 his uncle, Pat Dannelly, visited him. During the course of the visit the State (after establishing the necessary predicates of voluntariness) brought out from the uncle's testimony the following:

'Q (BY MR. ASHWORTH:) What did he say? Did he say something to you?

'A He did.

'Q What did he say?

'A He said, 'I guess you are like everybody else, came up here to hear--to question me and see if you can find out anything about what happened.'

'Q Now, did you say anything to him?

'A I told him that I did not come up there to question him, to dig him, or in any--or try to find out anything about it. But that I came up there to see him.

'Q Did he say anything to you after you made that statement?

'A He did.

'Q What did he say?

'A He said, 'Well, I know you are like the rest of them, and I will tell you what happened.'

'Q What did he say?

'A He said, 'I killed him'; that, 'I shot him five times and I killed him.'

'Q Did he give you any of the details about how he did it?

'A He said he was in his room, and that he came in there with the shot gun, shot him twice, the gun shot twice, then he reloaded and then shot him three more times.'

The defendant in brief collates the following: 1. the defendant was seventeen years of age; 2. he was being given Mellaril, a tranquilizer; 3. his mother had been transferred to Bryce Hospital for some unspecified emotional disorder; 4. the defendant had been harassed by having a highway patrolman escort him before his incarceration; 5. Two defense experts, one At the outset in this setting we hold that though the defendant was undoubtedly in custody, his interrogator (if the uncle could be so called) was not an officer of the law nor an agent of such officers. ¹ See Truex v. State, 282 Ala. 191, 210 So.2d 424; Carr v. State, 44 Ala.App. 661, 219 So.2d 646.

a psychologist, the other a psychiatrist, diagnosed him as a paranoid schizophrenic; and, 6. the defendant had been isolated and subjected to long periods of questioning (so it is said) though by whom we are not told.

Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 relates only to the confessorial contamination caused by improper action by the police who are aware, actually or constructively, that the accused has a lawyer. Escobedo has been given a narrow construction by the Alabama courts. Taylor v. State, 282 Ala. 567, 213 So.2d 566; Smith v. State, 282 Ala. 268, 210 So.2d 826 (10); Harris v. State, 280 Ala. 468, 195 So.2d 521; Beecher v. State, 280 Ala. 283, 193 So.2d 505; Wright v. State, 279 Ala. 543, 188 So.2d 272; Tiner v. State, 279 Ala. 126, 182 So.2d 859; Lokos v. State, 278 Ala. 586, 179 So.2d 714; Sanders v. State, 278 Ala. 453, 179 So.2d 35; and Duncan v. State, 278 Ala. 145, 176 So.2d 840 (27).

In Davis v. State, 44 Ala.App. 145, 204 So.2d 490 the former Court of Appeals per Johnson, J. applied the totality principle to reverse because of the circumstances surrounding the eliciting of two confessions. The opinion commented:

'However, here, in addition to appellant's rather extended imprisonment before confessing, we have a number of other coercive factors. We list the following:

'a) At the time of his arrest, appellant was seventeen years old.

'b) He was only booked by the Prichard police on a charge of 'hold for investigation'.

'c) He was held in Prichard City Jail for five days during which time a State witness stated that he confessed.

'd) On release from the Prichard custody, appellant was delivered to the Mobile police and was kept in the city jail for seven days.

'e) Appellant was booked in Mobile on a charge of 'investigation of robbery'; the complaining witness had not been asked to sign a 'John Doe' complaint.

'f) During these seven days he twice confessed.

'g) At no time either in Prichard or Mobile during the detention was appellant brought before a committing magistrate.

'h) No cautions, warnings or advice as to rights to see friends, family, counsel or just remain silent are shown.'

Here the only similarity is that Dannelly was of the same age as Davis. However, comparative youth alone is not an exclusively controlling factor in assessing the environment of an inculpatory statement. See Curry v. State, 203 Ala. 239, 82 So. 489. For a post-Miranda case involving the confession of a fifteen year old, see Seagroves v. State, 282 Ala. 354, 211 So.2d 486.

The defendant, according to this record, first broached the killing of his father. Nowhere does it appear that the uncle questioned the defendant; rather the defendant in an apparently hostile outburst flung the statement at his uncle.

As to the use of Mellaril it was not brought out in chief that Bryce Hospital had administered this phenothiazine derivative In the course of his cross examination he stated that the defendant was given an unspecified dosage of, first, Sparine (also a phenothiazine derivative) and later this was changed to Mellaril.

to the defendant. Rather to rebut the defendant's proof to support his plea of not guilty by reason of insanity the State put Dr. Sam Darden on the stand. He testified as to his observation of the defendant at Bryce Hospital.

This latter tranquilizer or central nervous system suppressant he described as being routinely prescribed to reduce anxiety and tension making the patient more relaxed. It is inferable from Dr. Darden's testimony that the dosage given the defendant would not distort judgment or inhibitory mechanisms.

In Edwardson v. State, 255 Ala. 246, 51 So.2d 233 the City physician gave the incarcerated defendant two quarter-grain tablets of codeine and on leaving the city jail told a police officer that 'She (the defendant) was talkative and they might go up there and talk with her.' Shortly thereafter the defendant confessed. The administration of this narcotic was one of the causes of reversal.

In Dennison v. State, 259 Ala. 424, 428, 66 So.2d 552, 555 we find:

'It is true the defendant may have been somewhat weakened by having taken the sleeping pills some nine days previously, but there is no evidence to indicate in the slightest that she was not in full use of her mental faculties or that the confession was induced by any kind of duress or promise. In this connection it is to be observed that the voluntariness of a confession is not affected by the fact that the accused was not in full possession of her...