Dunkins v. State, 6 Div. 669

• Decision Date: 01 February 1983
• Docket Number: 6 Div. 669
• Citation: 437 So.2d 1349
• Parties: Horace Franklin DUNKINS, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1349

437 So.2d 1349

Horace Franklin DUNKINS, Jr. v. STATE.

6 Div. 669.

Court of Criminal Appeals of Alabama.

Feb. 1, 1983.

Rehearing Denied March 1, 1983.

Murray P. Stovall, III, of Dinsmore, Waites & Stovall, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., Ed Carnes, P. David Bjurberg, Asst. Attys. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted for the capital offense of "rape when the victim is intentionally killed" in violation of Alabama Code Section 13A-5-31(a)(3) (1975). A jury found him guilty of "the capital offense as charged in the indictment." A separate sentencing hearing was held and the jury fixed the defendant's punishment at death. The trial court then held a separate hearing as required by Alabama Code Sections 13A-5-32 and -33 (1975), adjudged the defendant guilty of the capital offense as charged in the indictment, and fixed his sentence at death. Three issues are argued on appeal.

I

The defendant contends that his Fifth Amendment rights were violated when he was subjected to police questioning after requesting counsel. He argues that Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), is controlling. Edwards followed the holding of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), that if the accused requests counsel, "the interrogation must cease until an attorney is present." Miranda, 384 U.S. at 474, 86 S.Ct. at 1628.

"(W)e now hold that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchange or conversations with the police." Edwards, 451 U.S. at 484-85, 101 S.Ct. at 1885.

The crime was committed sometime during the night of Monday, May the 26th or the early morning of May the 27th. The defendant and Ernest Jackson were taken into custody by Deputy Sheriff James Earl Smith a little after 9:00 A.M. on the 27th and transported from Alabama Wire Company, where they were employed, to the Jefferson County Sheriff's Office. The defendant was fully advised of his constitutional rights under Miranda v. Arizona, supra, and made a voluntary, knowing and intelligent waiver.

Sergeant Smith then asked the defendant "some questions about some of his personal history and he said he didn't want to talk to no one, wanted to talk to a lawyer." Smith asked, "In other words you don't want to talk to me any more, is that correct?" The defendant replied, "No" and Smith concluded the statement at 10:00 A.M. without asking any additional questions. The record indicates that defendant answered a few of Sergeant Smith's questions and then said, "Before I talk any more now I would like to talk to my lawyer, or either my mama or somebody, I'm run down at this place." After the defendant said this, Sergeant Smith asked him some "personal history questions" concerning his age, height, weight, name, address and phone number.

After the request for counsel, the defendant was not questioned about the murder. The interview began at 9:49 A.M. and ended at 10:00 A.M.

After the questioning stopped, the defendant was told that he was going to be placed in a lineup and that if he could not be identified he would be taken back to work. The defendant was not identified, was released from custody and was taken back to his place of work around noon.

On the way back to Alabama Wire Company, Jackson volunteered to take a polygraph test. The defendant also agreed to do the same. The next day, May 28th Deputy Sheriff Fred House picked up the defendant and Jackson at the Alabama Wire Company and took them to the Sheriff's Office to take the polygraph. After the test, both the defendant and Jackson were taken back to the Wire Company. Deputy House testified that on the way back to the company, the defendant told him that "he would be willing to talk with me more if I wanted him to, and what time he would get off that evening and he would be home if I needed to talk to him more."

Deputies Smith and House talked with the defendant's parents around 4:00 that afternoon. During the conversation, the defendant arrived and remained present but was not questioned.

About two or three hours later that afternoon, Deputy House telephoned the defendant at home and told him he needed to talk to him. The defendant agreed to go to City Hall with Deputy House. There, the record shows, the defendant was repeatedly advised of his Miranda rights and made both an oral and a written waiver of his constitutional rights.

Roger Dale Beam, Chief of Police of Warrior, told the defendant that Frank Marie Harris had given a statement implicating the defendant, that Beam knew the defendant was involved and would prove it if it was the last thing he ever did. The Chief was in the same room with the defendant for no more than a minute and a half and made this statement as they "were passing".

Deputy House told the defendant that he was being arrested for rape and murder. After House informed the defendant of the evidence against him, including the statement given by Harris, the defendant confessed and admitted his participation in the crime. Before the defendant told his "side of the story", Deputy House asked him whom he wanted present during the interview and the defendant stated that he wanted House and Deputy Carl Johnson present. With these officers present, the defendant then admitted his involvement.

The substance and intent of Edwards were not violated. After the defendant requested counsel all questioning concerning the facts of the case ceased. The defendant's constitutional rights were not violated by the fact that Deputy Smith sought biographical information from the defendant after the defendant had requested counsel. Varner v. State, 418 So.2d 961, 962 (Ala.Cr.App.1982). Miranda does not erect "an absolute per se bar on any conversation with the accused by investigating officers after the former has requested counsel. It only inhibits investigative interrogation related to the specific crime itself." United States v. Grant, 549 F.2d 942, 946 (4th Cir.), cert. denied, 432 U.S. 908, 97 S.Ct. 2955, 53 L.Ed.2d 1081 (1977).

After the defendant was not identified in a lineup, he was released from custody and remained free for more than twenty-four hours. Sometime during that time he indicated to the police that he would be willing to talk to them. This is just the opposite of the facts in Edwards where Edwards, after having requested to see counsel, was told that "he had" to talk to the police. This case is clearly distinguishable from Edwards because of the critical facts that the defendant was released from custody after he requested counsel and that he expressed a complete willingness to talk with Deputy House. Swint v. State, 409 So.2d 992 (Ala.Cr.App.1982); Warrick v. State, 409 So.2d 984 (Ala.Cr.App.1982).

In this case we have both express and explicit oral and written waivers of Miranda. North Carolina v. Butler, 441 U.S. 369, 375-76, 99 S.Ct. 1755, 1758-59, 60 L.Ed.2d 286 (1979) (Although a Miranda waiver must be made specifically, it need not be express but may be inferred from the circumstances).

Confrontation with a co-defendant's confession is not necessarily an unfair tactic or unlawfully coercive. Gibson v. State, 347 So.2d 576, 582 (Ala.Cr.App.1977). That the defendant's statement was motivated by his feeling of revenge against Harris and induced by his desire to see Harris prosecuted for the murder and rape does not render his statement involuntary. Moore v. State, 415 So.2d 1210, 1214 (Ala.Cr.App.1981); Oliver v. State, 399 So.2d 941, 945 (Ala.Cr.App.1981).

Clearly, a confession induced by a threat that the accused will be prosecuted unless he confesses will render any statement or confession involuntary and inadmissible in evidence. Hinshaw v. State, 398 So.2d 762 (Ala.Cr.App.), cert. denied, 398 So.2d 766 (Ala.1981). We do not consider Chief Beam's statement that he would prove that the defendant "did it" as a threat in order to get the defendant to confess. We find no express or implied threat in Chief Beam's statement that the defendant would be prosecuted unless he confessed.

Threatening the defendant with prosecution if he does not confess is not the same as confronting an accused with evidence of his guilt. From the record, it appears that the law enforcement officers were totally candid in their dealings with the defendant. The statements made and the attending circumstances were not calculated to delude the defendant as to his true position, or exert improper and undue influence over his mind. There was no fraud, trickery, or subterfuge employed. 99 A.L.R.2d 772 (1965). The record supports no inference of pretense, artifice or deception. To the contrary, the record shows that the law enforcement officers were honest and straightforward in confronting the defendant with the case they had against him.

We have thoroughly reviewed the totality of the circumstances surrounding both statements given by the defendant, including the facts that he was nineteen years old and almost illiterate. Our assessment of these facts convinces us that both statements were completely voluntarily given after a knowing and intelligent waiver of constitutional rights.

II

We cannot accept the defendant's contention that the corpus delicti of the capital offense charged in the indictment was not proven because the State failed to prove rape or attempted rape.

It is true, as the defendant argues, that there was no physical evidence of rape presented. Because of...