Ex parte Johnson

• Citation: 522 So.2d 234
• Parties: Ex parte Donald R. JOHNSON (Re Donald R. Johnson v. State). 86-652.
• Decision Date: 15 January 1988
• Court: Supreme Court of Alabama

Page 234

522 So.2d 234

Ex parte Donald R. JOHNSON (Re Donald R. Johnson v. State).

86-652.

Supreme Court of Alabama.

Jan. 15, 1988.

Fulton S. Hamilton of Simpson, Hamilton & Ryan, Huntsville, for petitioner.

Don Siegelman, Atty. Gen., and J. Anthony McLain and James F. Hampton, Sp. Asst. Attys. Gen., for respondent.

PER CURIAM.

This is a review by writ of certiorari. We granted the writ in response to Donald R. Johnson's petition, which asserts that the Court of Criminal Appeals erred to reversal, 502 So.2d 401 (Ala.Crim.App.1986) , in affirming his conviction on two counts of motor vehicle theft. As grounds in support thereof, he argues that the trial court improperly admitted into evidence a statement that, he says, was obtained by police in violation of constitutional safeguards, and that the trial court improperly allowed a jointly indicated co-defendant to testify for the State over the objection of petitioner. The conviction was affirmed without opinion. For the reasons indicated herein, we reverse.

Facts

The following events occurred during the evening and early morning hours of August 18-19, 1984: Donald R. Johnson and Anthony L. Glassco, who were incarcerated together in the same cell, escaped from the Lincoln County jail at Fayetteville, Tennessee. The pair traveled later that same night to neighboring Madison County, Alabama, where in Huntsville they stole a 1974 Mercury Montego automobile. The ignition key had been left on the floorboard of the vehicle, which was parked at the owner's residence in a mobile home park. Johnson and Glassco then crossed back into Tennessee in this vehicle. It was not clearly established which of the two was operating the vehicle following this theft. At some point the two became heavily intoxicated and, as an apparent result, were involved in a one-vehicle accident on a rural stretch of road in Lawrence County, Tennessee. Both Johnson and Glassco suffered minor personal injuries, but the Mercury automobile they had stolen was damaged beyond repair. The pair fled the accident scene, abandoning the wrecked vehicle. Johnson and Glassco then hitchhiked back to Alabama, where they took refuge briefly in Huntsville at the home of Johnson's sister. Subsequently, the pair stole a white 1975 Chrysler Cordoba that was parked at the owner's house in New Market, a community located in Madison County near Huntsville. Again the theft was facilitated by the fact that the owner had left the ignition key on the floorboard of the vehicle. The pair then drove back to Fayetteville, Tennessee, in the Cordoba, and there they were apprehended after being spotted by a deputy sheriff as they drove through the parking lot of the Lincoln County jail. One of the arresting officers testified that at the time of their recapture Donald Johnson was driving the automobile and Anthony Glassco was seated on the passenger side. Trooper Kevin Horan of the Tennessee Highway Patrol was assigned to investigate the one-vehicle accident that had occurred on August 19 or 20 involving the 1974 Mercury Montego. Trooper Horan came to the Lincoln County jail on August 24, to interview Johnson and Glassco concerning the accident. After a statement was taken from Glassco, Johnson was brought from his cell for the purpose of being interviewed by Trooper Horan. Chief Deputy Sheriff Mullins of the Lincoln County Sheriff's Department was present during the entire interview. After some preliminary discussion, but prior to questioning, Trooper Horan informed Johnson of his "Miranda" rights. Johnson agreed to answer questions, signed a waiver, ¹ and then gave an inculpatory statement to Trooper Horan. It is the admission of this statement over his objection at trial to which Johnson here assigns error. Our focus in this context is on the nature of the preliminary discussions indicated above, which resulted in a finding by the trial court of a voluntary, knowing, and intelligent waiver.

I.

The first issue for our determination is: Was the statement given by Johnson to Trooper Horan obtained in violation of constitutional safeguards and hence inadmissible in Johnson's subsequent criminal trial?

"It is a well settled rule of law in Alabama that a statement made subsequent to arrest is prima facie involuntary and inadmissible at trial, and the State must demonstrate voluntariness and a Miranda predicate in order to gain admission of the statement." (Citations omitted.)

Crowe v. State, 485 So.2d 351, 359 (Ala.Crim.App.1984), reversed on other grounds, 485 So.2d 373 (Ala.1985). Moreover, "[w]hen evaluating whether the State has proved waiver, courts indulge in every reasonable presumption against waiver." Tinsley v. Purvis, 731 F.2d 791, 794 (11th Cir.1984), citing with approval, Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). "The question of whether a confession is voluntary is a question of law to be first decided by the Court." Deloach v. State, 356 So.2d 222, 228 (Ala.Crim.App.1977), cert. denied, 356 So.2d 230 (Ala.1978). The trial court here properly conducted a hearing, outside the presence of the jury, to determine the voluntariness of Johnson's statement. See Lewis v. State, 57 Ala.App. 545, 329 So.2d 596 (1975), affirmed, 295 Ala. 350, 329 So.2d 599 (1976). During the hearing Trooper Horan testified as to what transpired at the interrogation of Johnson. Trooper Horan, in essence, confirmed that he advised Johnson of his constitutional right to remain silent and of his right to appointed legal counsel. Trooper Horan also testified that at no time was Johnson threatened, coerced, or offered any reward in exchange for his agreement to answer questions. Donald Johnson then took the stand for the limited purpose of testifying on the issue of voluntariness. Johnson testified that he consented to answer questions only upon Trooper Horan's assurance that his responses were for use in the completion of a traffic accident report in Tennessee and that those responses would not be used against him in any criminal proceeding in Tennessee or Alabama. On cross-examination Trooper Horan had testified that he did not recall saying to Johnson that the statement and accident report would not be used against him in subsequent proceedings in Alabama. The testimony being in dispute, the trial court made a credibility choice and accepted the testimony of Trooper Horan. "Making decisions based on disputed facts is an essential duty of trial judges." Sales v. State, 432 So.2d 560, 562 (Ala.Crim.App.1983). Moreover, because the determination of voluntariness of a confession is within the sound discretion of the trial judge, it has been generally held that "his decision will not be disturbed unless it is palpably contrary to the great weight of the evidence. He need only be convinced by a preponderance of the evidence that it was voluntarily made." Hammins v. State, 439 So.2d 809, 811 (Ala.Crim.App.1983) (citations omitted). In answering whether the trial judge's decision was supported by a preponderance of the evidence in this case, our inquiry is at all times guided by the principles enunciated in the landmark decision of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its most recent progeny; Brewer v. Williams, supra; Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981); and Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986):

"In Miranda v. Arizona, the Court recognized that custodial interrogations, by their very nature, generate 'compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.' 384 U.S., at 467, 86 S.Ct., at 1624. To combat this inherent compulsion, and thereby protect the Fifth Amendment privilege against self incrimination, Miranda imposed on the police an obligation to follow certain procedures in their dealings with the accused. In particular, prior to the initiation of questioning, they must fully apprise the suspect of the state's intention to use his statements to secure a conviction, and must inform him of his rights to remain silent and to 'have counsel present ... if [he] so desires.' Id., at 468-470, 86 S.Ct., at 1624-1626. Beyond this duty to inform, Miranda requires that the police respect the accused's decision to exercise the rights outlined in the warnings. 'If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, [or if he] states that he wants an attorney, the interrogation must cease.' Miranda, 384 U.S., at 473-474, 86 S.Ct., at 1627....

"....

"... Miranda [also] holds that '[t]he defendant may waive effectuation' of the rights conveyed in the warnings 'provided the waiver is made voluntarily, knowingly and intelligently.' 384 U.S., at 444, 475, 86 S.Ct., at 1612, 1628. The inquiry has two distinct dimensions. Edwards v. Arizona, supra, 451 U.S., at 482, 101 S.Ct., at 1885; Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception. Second, the waiver must have been made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the 'totality of the circumstances surrounding the interrogation' reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Fare v. Michael C., 442 U.S. 707 [99 S.Ct. 2560, 61 L.Ed.2d 197 (1979) ]." (Emphasis supplied.)

Moran, supra, 475 U.S. at 421, 106 S.Ct. at 1141. Under the "totality of the circumstances" in the instant case, that standard by which we are bound, we must conclude that Johnson's statement to Trooper Horan was the product of deception, albeit somewhat...