Embrey v. State

• Decision Date: 26 September 1968
• Docket Number: 3 Div. 327
• Parties: James Leroy EMBREY v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 567

214 So.2d 567

283 Ala. 110

James Leroy EMBREY v. STATE of Alabama.

3 Div. 327.

Supreme Court of Alabama.

Sept. 26, 1968.

Gatewood A. Walden, Montgomery, for appellant.

MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.

LAWSON, Justice.

On February 17, 1967, a grand jury of Montgomery County returned an indictment against James Leroy Embrey and Willie Lee Davis for the robbery of J. W. O'Daniel.

Upon his arraignment Embrey pleaded not guilty.

A severance was granted at the request of Embrey and Davis.

Embrey's trial began on Monday, March 6, 1967, and was concluded on the following day. The jury returned a verdict of guilty and fixed Embrey's punishment at life imprisonment. Judgment and sentence were in accord with the jury's verdict. After his motion for new trial was denied, Embrey appealed to this court. He has been furnished a free transcript based on the court's finding that he is a pauper.

Embrey was represented by counsel at arraignment and throughout his trial, including judgment and sentence, and on motion for new trial. He is represented by counsel in this court.

The trial venire was qualified in groups of ten. See Burns v. State, 226 Ala. 117, 145 So. 436; Aaron v. State, 273 Ala. 337, 139 So.2d 309. To each group the trial judge propounded the following question: 'Do each of you believe in capital punishment?' Presumably this question was propounded under the authority of § 57, Title 30, Code 1940, which gives the State the right to challenge for cause a prospective juror who has a fixed opinion against capital punishment. The District Attorney challenged for cause each of the prospective jurors who answered that question in the negative, which challenges were sustained by the trial court. There was only one objection interposed by counsel for appellant to this procedure. Since Embrey was not sentenced to death, we are not here concerned with the effect of the holding of the Supreme Court of the United States in Witherspoon v. State of Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776, decided on June 3, 1968.

In Witherspoon the Supreme Court of the United States held that a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. But in Bumper v. State of North Carolina, 391 U.S. 543, 88 S.Ct. 1788, 20 L.Ed.2d 797, also decided on June 3, 1968, the holding in Witherspoon was held not to be applicable when the jury recommends a sentence of life imprisonment. For the benefit of the bench and bar we call attention to the fact that the United States Court of Appeals, Fifth Circuit, in Spencer v. Beto, decided on July 18, 1968, applied the holding in Witherspoon to a case where a death sentence had been imposed several years prior to the deliverance of the opinion in Witherspoon.

Within a short time after the robbery, the defendant was apprehended by the police and carried to the Union Station, where O'Daniel positively identified the defendant as the man who had committed the robbery. C. W. Lansdon, also an employee of the Louisville & Nashville Railroad Company, was present at the time of the robbery and made an in-court identification of Embrey as the robber. The State offered testimony to the effect that within a comparatively short time after he was apprehended, Embrey, the defendant below, admitted the robbery.

Embrey testified on his own behalf and did not deny that the robbed O'Daniel. In fact, he in effect admitted that he did commit the robbery but sought to excuse his action on the ground that he was under the influence of alcohol and drugs at the time.

Under the evidence admitted during the course of the trial, a jury question was clearly presented and the trial court did not err in overruling the ground of the motion for new trial which took the point that the verdict was contrary to the evidence. The affirmative charge was not requested by the defendant below.

Detective Terry of the Montgomery Police Department assisted in the investigation of the robbery of O'Daniel and was a witness for the State. After testifying to certain matters not here pertinent, he was asked by the District Attorney if he had had a conversation with the defendant. He answered in the affirmative. Thereupon, the District Attorney suggested to the Court that further questioning of the witness should be conducted outside the presence of the jury. The record contains the following entry: 'At this point, Court, counsel and the Department retired to Chambers and the following occurred outside the presence of the jury.'

In the trial judge's chambers, outside the presence of the jury, the District Attorney questioned the witness Terry regarding his conversation with the defendant. Terry stated that the conversation took place at Police Headquarters and that no one was present when the defendant first made an admission against interest except the witness and the defendant, although Officer Cleveland had been 'in and out of the room.' Officer Terry said that neither he nor anyone in his presence offered the defendant any reward or hope of reward or made him any promises or threatened or intimidated him in any way; that he told the defendant he did not have to make a statement and that anything he said could be used against him; that he was entitled to a lawyer if he wanted one even if he was not able to employ a lawyer; that the lawyer would be appointed by the Court. Terry futher stated that in his judgment the defendant knew 'what he was doing' and 'seemed to want to cooperate in trying to get the truth down.' Terry further stated that the defendant admitted that he committed the robbery.

On cross-examination, outside the presence of the jury, Terry stated that his conversation with the defendant lasted more than a few minutes; that they had a lengthy conversation. During the course of the conversation the defendant was allowed to go to the bathroom and to smoke. Terry never told the defendant 'that things would go better for him if he would go ahead and tell the whole truth about it.' At the time of the conversation the investigation 'had focused on' the defendant as the suspect. The statement made by the defendant was not under the advise of an attorney.

On redirect examination, outside the presence of the jury, the witness stated that after he told the defendant he was entitled to a lawyer the defendant did not request a lawyer and said that he wanted to go on and talk.

Although the defendant and his lawyer were present at the questioning of Officer Terry outside the presence of the jury, which was, of course, held for the purpose of determining whether the defendant's confession was made voluntarily, neither defendant nor any other witness was presented to contradict any statement made by Officer Terry or to show that the 'conversation' was of such long duration, when considered in connection with the defendant's age, character and situation, that he was deprived of his free choice to admit, to deny or to refuse to answer. See Phillips v. State, 248 Ala. 510, 28 So.2d 542, and cases cited. At the conclusion of the examination of Officer Terry in chambers, counsel for defendant moved the Court 'to suppress this evidence because he (the defendant) did not have a lawyer at the time the statement was made.' That motion was denied. We construe the record as showing that outside the presence of the jury, the trial court determined that the State had met the burden which was upon it to rebut the presumption that the confession was not made voluntarily and concluded that it was made voluntarily.

Certainly there was no violation of Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. And we would like to take this occasion to remind the other district attorneys and trial judges of the state that the safer course to pursue in all cases when a confession is to be introduced is to have the trial court pass on the question of the voluntariness of the alleged confession outside the presence of the jury.

The trial of this case began after June 13, 1966. Consequently, the holding of the Supreme Court of the United States in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, has application. See Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882. However, we are of the opinion that no violation of Miranda is shown. Here, prior to any questioning, the defendant was warned, in effect, that he had a right to remain silent; that any statement he made could be used as evidence against him; that he had a right to the presence of an attorney. There is nothing in this record even remotely tending to show that the defendant expressed a desire to consult with a lawyer before or after the questioning began or to have a lawyer present at the questioning.

The defendant, a Negro, was twenty-one years of age and a high school graduate. He had an opportunity to refute the statements made by Officer Terry relative to the advice which the latter said he gave to defendant before the questioning began, but he did not do so.

We are of the opinion that the trial judge did not err in determining that the confession was made voluntarily and in admitting in into evidence.

As indicated above, the State proved by O'Daniel that he identified the defendant as the man who robbed him. This identification was not made at a lineup, but was made at O'Daniel's office shortly after the crime was committed. O'Daniel had refused to identify two other men who were taken to his office by the police before the defendant was taken there alone. The Supreme Court of the United States in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178,...