Dotson v. State
| Decision Date | 04 April 1972 |
| Docket Number | 1 Div. 116 |
| Citation | 48 Ala.App. 381,265 So.2d 164 |
| Parties | Lee Henry DOTSON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Dotson was arrested on the afternoon of October 18, 1969. At that time he appeared to be intoxicated and for this reason was not questioned until the following day about noon. He began answering questions after Detective Chambers had given him the Miranda warnings. During the questioning the following occurred:
'
After Dotson indicated that he did not want to answer questions regarding how the gun went off, Detective Chambers did not further question him on that subject. Thus, there is no indication from the record that there was any coercive action on the part of the police.
Implicit in his answer is the fact that he understood he had a right to refuse to answer questions until he talked to a lawyer if he so chose. That he had the presence of mind to selectively refuse to answer certain questions until he had talked to a lawyer strongly supports the conclusion that Dotson understood the warnings and voluntarily relinquished his rights to the questions which he chose to answer. By refusing to answer the above question he was in fact exercising the very right in question on this appeal.
Furthermore, at no time during trial did he contend that his statements were involuntary or that he failed to waive his right to counsel. This identical question was before the Court in United States v. Hayes, 385 F.2d 375 (4 Cir., 1967); cert. denied 390 U.S. 1006, 88 S.Ct. 1250, 20 L.Ed.2d 106, where the following observation was made:
'. . . Moreover, it is noteworthy that at no stage in the proceedings has the appellant ever denied that he understood the warnings given him, and while a defendant does not have the obligation to testify himself or to offer testimony, a court cannot supply evidence that is lacking . . ..'
Thus, there is no evidence whatsoever in the record to indicate that Dotson failed to understand and to waive his right to counsel. On the contrary, the manner in which he answered questions indicates that he did waive his right to counsel and his privilege against self-incrimination.
After further consideration we consider the judgment of conviction should be affirmed. For a more complete statement of the facts see Judge Cates' dissenting opinion.
Affirmed.
In addition to what was said on original deliverance I set out the Entire (except as noted) evidence as to Dotson's confessing including the question and answer confession. This evidence came into the case through the testimony of the witness, Doyle W. Chambers, a detective employed as a deputy sheriff. The pertinent testimony (R. 43--47) was as follows:
'MR. PFLEGER: After you saw him that first time, did you see him again later?
A. The following day about 12:00 o'clock.
Q And at that time and place that you saw him, Mr. Chambers, where was he?
A In my office in the Detective Division of the Sheriff's Office.
Q And when you saw him in your office in the Detective Division of the Sheriff's Office the following day, did you advise him of anything?
A I advised him of his legal rights.
A I did not.
Q Did you use any force, duress or coercion of any nature to get him to make a statement?
A No, sir.
Q Did anyone in your presence or hearing offer him any reward or hope reward or any inducement to get him to make a statement?
A No, sir.
Q Did anyone in your presence or hearing use any force, duress or coercion of any nature to get him to make a statement?
A No, sir, they did not.
Q Did he make a statement?
A He did, sir.
Q Was it reduced to writing?
A Yes, sir.
Q And who handled that, please, sir?
A I did.
Q Do you have it with you?
A Yes, sir. It's in my file right there--the yellow pages.
Q (Handed witness file from counsel table) Would you take the statement off from any other papers, please, sir?
A Yes, sir.
A Yes, sir. That is the statement that I took from Lee Henry Dotson.
Q Is that the typewritten statement after it was written down in longhand?
A Yes, sir. It was reduced to typing from our original longhand copy.
Q And was that signed in your presence?
A It was.
Q By whom?
A Lee Henry Dotson.
Q And who else was present at the time?
A Detective Manning witnessed the statement in its entirety, and signed it as a witness.
Q But this typewritten copy doesn't show that anybody witnessed it, does it?
Q But you and Mr. Manning witnessed it, and Detective Joe Hutchisson, is that correct?
A Yes, sir.
The following statement is given to Doyle Chambers and James Manning who have identified themselves as Detectives Mobile Sheriff's Office.
Q What is your full name?
A Lee Henry Dotson.
Q When were you born?
A July 10, 1932.
Q What is you address?
A Rt. 1, Box 2, Grand Bay, Ala.
Q How much education do you have?
A 11th grade.
Q Where do you work?
A Self-employed.
Q Are you married?
A Yes, four children.
Q Do you know Daniel Peyton also known as 'Pee Wee Boykin'?
A I know him.
Q How long have you known him?
A I guess all my life.
Q Were you friends?
A Just run together sometimes.
Q When did you see him last?
A Saturday in Grand Bay.
Q Was this in Fernland near the barber shop?
A Yes.
Q What happened when you saw him if anything?
A I drove up in my truck to get a haircut and Boykin was there in the back of Henry Hayes car with Hayes and somebody else.
Q What did you do then?
A I parked in front about 10 feet from their car. He got out
Signature of person giving voluntary statement
and come over to my truck. I asked him about a tool that he had taken off my truck Friday night.
He told me (sic) had it and I wasn't going to get it back. I asked him why did he hit my wife Friday night. He told me he would do the same to me.
He had the door open and was sitting on the edge of the seat. He started to run his right hand in his pocket. I had my gun laying on the seat between us. I picked it up and it went off.
He fell out of the truck on the ground. I went around to him. I closed the door. His uncle came out and said he was going to call an ambulance. I got in my truck and drove off because all those people were kin to him.
I went home. I told my wife what had happened. Then her sister came and we left and went out in Dawes. We called the hospital. They said he was dead. I said that was just as good a place as any to wait on the police to come.
Q When Boykin ran his hand towards his pocket did he say anything?
A He was cursing me.
Q Did you know if he had a weapon or not?
A No, sir.
Q Did he say he did?
A No he didn't.
Q You say the gun went off. How did this happen?
A I would like to wait to answer this until I talk to my lawyer.
Q What happened to the gun?
A I dropped it on the truck seat. I don't know what happened to it them.
Q When the gun fired where were you?
Q When you walked around and looked at him was he alive then?
A Yes.
Q Did you at any time call the law?
A No, sir.
Q What type gun was it?
A A .32 revolver.
Q Whose gun was it?
A My wife's.
Q How many times did you fire the gun?
A Just once.
Q Do you know where the bullet struck Boykin?
A No sir I don't.
Q Were you and he alone in the truck?
A Yes.
Q Did anyone say anything to you before you shot him?
A Not that I know of.
Q Are all the above statements true and correct to the best of your knowledge?
A Yes.
S/Lee H. Dotson MR. PFLEGER: Now, if the Court please, I would like to read the statement to the jury.
THE COURT: Either one of you can read all or either part of it.'
(Italics supplied).
As to the so called warning, I note that the presence of a lawyer for an indigent was to be contingent on the 'court' appointing and paying a lawyer. At that time Act No. 526, September 16, 1963, empowered circuit courts or courts of like jurisdiction or courts wherefrom a direct appeal lay to either the Supreme Court or the former Court of Appeals as the only trial courts to appoint and order payment for counsel for...
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