Eddings v. State, 7 Div. 132

• Citation: 443 So.2d 1308
• Decision Date: 16 August 1983
• Docket Number: 7 Div. 132
• Parties: Johnny EDDINGS v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 1308

443 So.2d 1308

Johnny EDDINGS v. STATE of Alabama.

7 Div. 132.

Court of Criminal Appeals of Alabama.

Aug. 16, 1983.

On Return to Remand Oct. 4, 1983.

Rehearing Denied Nov. 1, 1983.

Certiorari Denied Jan. 13, 1984

Alabama Supreme Court 83-209.

Andrew W. Redd, Sylacauga, for appellant.

Charles A. Graddick, Atty. Gen., and Jean Williams Brown, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Johnny Eddings appeals his conviction in the Circuit Court of Talladega County, Alabama, had pursuant to § 13A-7-7, Code of Alabama 1975. Following a guilty verdict, a sentence of three years' imprisonment was imposed.

I

Just prior to trial, appellant's counsel filed a motion to quash raising the issue of the fact that a law partner of the assistant district attorney had served as foreman of the Grand Jury which returned the indictment in this cause. The Honorable Barry N. McCrary is, in fact, a law partner of the assistant district attorney, the Honorable Julian M. King.

At the hearing on the plea and the motion in which this issue was discussed, the following occurred: (R. 34).

"2/15/83 Pretrial motion to bring Steve Eddings to Court as witness granted. All other pretrial motions filed by defendant denied after hearing. JLF" (s/Jerry L. Fielding).

This court on August 2, 1982, in the case of Ervin v. State, 442 So.2d 123 (Ala.Cr.App.1983), has ruled on this very issue involving these same parties. In Ervin we remanded that case to the circuit court with directions that the appellant and his counsel be present and a hearing conducted on the issue as originally raised. We further directed that a transcript of this hearing be prepared, with appropriate findings set forth in writing by the trial judge, determining whether or not there had been confidential information with reference this cause exchanged between the law partner and the district attorney and any full or part time member of his staff.

As with Ervin, should the trial judge find that the law partner possessed no disqualifying knowledge when the Grand Jury was convened, then he was, in fact, competent to serve as a member of and to be the foreman of the Grand Jury. Ervin, supra.

Because of the necessity to clarify this issue, i.e., whether or not there existed a conflict of interest in this case, we hereby remand this cause with directions that a full hearing be conducted on the issue as herein set forth and that a transcript of such proceeding be promptly returned to this court. Costello v. United States, 350 U.S. 359, 363, 76 S.Ct. 406, 100 L.Ed. 397 (1956). ¹

REMANDED WITH DIRECTIONS.

All the Judges concur.

ON RETURN FROM REMAND

TYSON, Judge.

Johnny Eddings was indicted for burglary in the third degree in violation of § 13A-7-7, Code of Alabama 1975. The appellant was granted youthful offender status and following a non-jury trial, he was found guilty as charged and sentenced to three years in the custody of the Alabama Department of Corrections.

I

This case was remanded to the trial court with directions that it make a factual determination as to whether the law partner of the assistant district attorney, who served as foreman of the grand jury which returned the indictment in this case, possessed any disqualifying information relative to this case. The trial court submitted its written findings to this court which revealed:

"that Barry McCrary possessed no disqualifying knowledge when this Grand Jury that indicted Johnny Eddings was convened on January 10, 1983, and was therefore competent to serve as a member of and to be foreman of the Grand Jury based on the following findings of fact:

"(1) That Assistant District Attorney King did not confer with his partner, Barry McCary relative to the prosecution of Johnny Eddings at any time prior to the convening of the Grand Jury on January 10, 1983 or subsequent to the convening thereof in which Johnny Eddings was indicted.

"(2) That Assistant District Attorney King had no knowledge that Johnny Eddings had been charged with any crime or that his case was to be presented to a Grand Jury for its consideration prior to January 10, 1983.

"(3) That Assistant District Attorney King did not participate in prosecution of Johnny Eddings at this Grand Jury during this session. In fact, Mr. King was in the hospital when this Grand Jury was convened by Judge William C. Sullivan on January 10, 1983. That a true bill was rendered by this Grand Jury as to Johnny Eddings on January 10, 1983 and Assistant District Attorney King did not make an appearance at this Grand Jury until January 12 or January 13, 1983.

"(4) That the law partner to Assistant District Attorney King, namely Barry McCrary, did not confer with Assistant District Attorney King or any other member of the District Attorney's staff including the District Attorney, Robert Rumsey, relative to the prosecution of Johnny Eddings at any time prior to the convening of this Grand Jury on January 10, 1983, that indicted Johnny Eddings.

"(5) That Attorney Barry McCrary had no knowledge that Johnny Eddings had been charged with any crime or that this case was to be presented to a Grand Jury for its consideration prior to January 10, 1983.

"(6) That Attorney Barry McCrary and Assistant District Attorney King did not confer with each other after the convening of this Grand Jury relative to the prosecution of Johnny Eddings while this Grand Jury was in session.

"(7) That Attorney McCrary had no preconceived bias or prejudice as a Grand Juror in this case either because of his partnership with Assistant District Attorney King or for any other reason presented to this Court."

From the above recitation, this court finds that what appeared to have been a possible conflict of interest was, in fact, no conflict whatever. See Terry v. State, 424 So.2d 710 (Ala.Cr.App.1982). We can find no violation of §§ 12-16-207, 209, Code of Alabama 1975 or the Code of Ethics for Lawyers. Therefore, we hold the assistant district attorney's law partner was competent to serve as a member of and to be foreman of the Grand Jury which returned the indictment in the case at bar. The appellant's motion to quash the indictment was properly denied by the trial judge.

II

The issue we must now examine is whether the appellant's waiver of his constitutional rights and his subsequent confession were voluntary. Since confessions are prima facie involuntary, we must look to see if the State proved, in fact, the appellant's waiver and confession were understandingly, knowingly and intelligently made. Garrett v. State, 369 So.2d 833 (Ala.1979); Hines v. State, 384 So.2d 1171 (Ala.Cr.App.), cert. denied, 384 So.2d 1184 (Ala.1980).

Mary Hawthorne, the owner of Krystal Service Station, testified that on the morning of August 21, 1982, she arrived at her store and discovered it had been burglarized. Entry into the store was gained through a hole in the wall where the air conditioner had been removed. That day she observed the appellant and his brother, Richard Eddings, go around to the back of the station and point to the hole where the air conditioner had been. The boys did this five or six times throughout the course of the day, so she called Theodore Wilson of the Sylacauga Police Department and complained.

Wilson found the two boys in the area of the store so he asked them to go to the police station with him to talk over the matter and they agreed. On the way to the station, Wilson stopped at the appellant's house and asked his stepfather to accompany them to the station which he did.

At the station, Wilson read the boys their Miranda rights and a waiver of these rights and they indicated they understood what was read to them. The appellant then told Wilson that he and his brother were riding around on the night of the burglary and went to the service station. They removed the air conditioner, entered the store and took some beer and cigarettes.

Wilson then turned the boys over to Detective Ken Brasher. On August 23, 1982, Brasher read the boys their Miranda rights and obtained a statement from them. Mary Thomas, the person who transcribed the appellant's statement, testified he was extremely nervous when he gave his statement and when she read it back to him.

Prior to trial, a hearing was held on the appellant's motion to suppress his statement. At the hearing, Horace Pope, the Director of Special Education for the Talladega County Schools, testified that the special education students' records were kept in his custody, and he brought with him to trial court, the psychological evaluations of the appellant and his brother, Richard. The evaluations were done every three years and the appellant had last been tested on April 9, 1981, and withdrew...