Ex parte Callahan

• Decision Date: 08 February 1985
• Parties: Ex parte James Harvey CALLAHAN. (In re James Harvey Callahan v. State of Alabama). 82-1172.
• Court: Alabama Supreme Court

Page 463

471 So.2d 463

Ex parte James Harvey CALLAHAN (In re James Harvey Callahan v. State of Alabama).

82-1172.

Supreme Court of Alabama.

Feb. 8, 1985.

Rehearing Denied April 5, 1985.

Fred Ray Lybrand, Wilford J. Lane and John Thomason, Anniston, for petitioner.

Charles A. Graddick, Atty. Gen., and Edward Carnes and William D. Little, Asst. Attys. Gen., for respondent.

PER CURIAM.

A writ of certiorari was granted to the Court of Criminal Appeals to review the Our primary concern is whether certain inculpatory statements made by the Petitioner were properly admitted into evidence. The Attorney General asks this Court to overrule Cagle v. State, 45 Ala.App. 3, 221 So.2d 119, cert. denied, 284 Ala. 727, 221 So.2d 121 (1969), and properly states the Petitioner's contention as follows:

death penalty judgment, pursuant to Code 1975, § 12-22-150, and Rule 39, A.R.A.P.

"Petitioner urge[s] the Court to hold inadmissible his statement to law enforcement officials made February 24, 1982. The Petitioner's theory was that the statement was based upon an earlier statement made February 23, 1982, and that the State did not sufficiently prove that the specific warnings required by Miranda v. Arizona, 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), were given to the Petitioner prior to the earlier statement; hence the allegedly inadmissible earlier statement tainted the later statement."

The Petitioner made two separate incriminating statements, the first on February 23, 1982, and the second on February 24, 1982. Concededly, the initial statement was not prefaced by appropriate Miranda warnings. The State contends that, because the confession of February 24 (the one admitted into evidence) was predicated upon a valid Miranda warning, the burden shifted to the defendant to show the specifics of those Miranda rights not read or stated to him before the February 23 confession.

The proper questions for resolution are whether a second confession obtained after a proper Miranda warning was given is rendered inadmissible if it is the progeny of a previous illegally elicited confession, and who has the burden of showing that the second confession was or was not illegally tainted by the first.

Extrajudicial confessions are prima facie involuntary and inadmissible, and the burden is on the State to prove that the confession was made voluntarily, C. Gamble, McElroy's Alabama Evidence, § 200.02(1) (3d ed. 1977). The cases which support this ancient proposition are legion and are collected in 6 Ala.Digest Criminal Law, Key Numbers 516, 517, 517.1, 519.

After the decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the State is required to lay two predicates before a confession is admissible. The first predicate requires a showing of voluntariness, i.e., absence of coercion or offer of reward, etc., and the second requires the State to prove that a proper Miranda warning, i.e., the right to remain silent and the right of counsel, etc., was given prior to any questioning by the police.

As Cagle v. State, 45 Ala.App. 3, 221 So.2d 119, cert. denied, 284 Ala. 727, 221 So.2d 121 (1969), points out, the precise question before us was decided by the United States Supreme Court in Westover v. United States, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Westover decision, incidentally, is incorporated in the Miranda decision, supra.

"At the time the FBI agents began questioning Westover, he had been in custody for over 14 hours and had been interrogated at length during that period. The FBI interrogation began immediately upon the conclusion of the interrogation by Kansas City police and was conducted in local police headquarters. Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning. There is no evidence of any warning given prior to the FBI interrogation nor is there any evidence of an articulated waiver of rights after the FBI commenced its interrogation. The record simply shows that the defendant did in fact confess a short time after being turned over to the FBI following interrogation by local police. Despite the fact that the FBI agents gave warnings at the outset of their interview, from Westover's point of view the warnings came "We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station--in the same compelling surroundings. Thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege."

at the end of the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed.

Id., 384 U.S. at 495-497, 86 S.Ct. at 1638-1640.

The Court held that it could not find that Westover, prior to the time he made the second statement, knowingly and intelligently waived his right to remain silent and his right to consult with counsel.

The Miranda decision makes it abundantly clear that a heavy burden rests on the state to show a waiver of a constitutional right:

"If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. State of Illinois, 378 U.S. 478, 490, n. 14, 84 S.Ct. 1758, 1764 [n. 14], 12 L.Ed.2d 977. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we reassert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.

"An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 (1962), is applicable here:

" 'Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' "

Id., 384 U.S. at 475, 86 S.Ct. at 1628.

In Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the United States Supreme Court was concerned with what effect to give the evidentiary exclusionary rule where narcotics were discovered as a result of illegally induced declarations of a co-defendant. In that regard the Court observed:

"We now consider whether the exclusion of Toy's declarations requires also the exclusion of the narcotics taken from Yee, to which those declarations led the police. The prosecutor candidly told the trial court that 'we wouldn't have found those drugs except that Mr. Toy helped us to.' Hence this is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence 'from an independent source,' Silverthorne Id., 371 U.S. at 487-488, 83 S.Ct. at 417-418.

                Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319;  nor is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has 'become so attentuated as to dissipate the taint.'   Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 268, 84 L.Ed. 307.   We need not hold that all evidence is 'fruit of a poisonous tree' simply because it would not have come to light but for the illegal actions of the police.  Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence of which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'   Maguire, Evidence of Guilt, 221 (1959).  We think it clear that the narcotics were 'come at by the exploitation of that illegality' and hence that they may not be used against Toy."
                

While it may be argued that Wong Sun is not exactly in point, it is nevertheless instructive as to what the considerations of a court must be in deciding the admissibility of evidence which was gained in part or totally by exploitation of previous illegal conduct. In this regard, however, the Court stated:

"Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence. Either in terms of deterring lawless conduct by federal officers, Rea v. United States, 350 U.S. 214, 76 S.Ct. 292, 100 L.Ed. 233, or of closing the doors of the federal courts to any use of evidence unconstitutionally obtained, Elkins v. United States, 364 U.S. 206, 80 S.Ct. 1437, 4 L.Ed.2d...