Ex parte McCary

• Decision Date: 15 January 1988
• Parties: Ex parte Alvin McCARY. 86-1219.
• Court: Alabama Supreme Court

Page 1133

528 So.2d 1133

Ex parte Alvin McCARY.

86-1219.

Supreme Court of Alabama.

Jan. 15, 1988.

Rehearing Denied March 25, 1988.

Blanchard L. McLeod, Jr., Selma, for petitioner.

Don Siegelman, Atty. Gen., and Dorothy F. Norwood, Asst. Atty. Gen., for respondent.

PER CURIAM.

We granted certiorari in this case to consider whether the petitioner's confession should have been suppressed.

The petition and the attached Rule 39(k), Ala.R.App.P., statement of facts indicate, and the record confirms, that the petitioner was convicted in the Circuit Court of Dallas County of robbing Martin's Mercantile in Plantersville, Alabama. The Court of Criminal Appeals affirmed the conviction, 511 So.2d 276, and, thereafter, overruled the petitioner's application for rehearing.

The following material facts are not in dispute: James Henderson, an investigator with the Chilton County Sheriff's Department, and Chief Deputy Benny Mims, also of the Chilton County Sheriff's Department, travelled to Flagstaff, Arizona, and questioned the petitioner about the robbery that had occurred at Martin's Mercantile. At the time he was questioned by Henderson and Mims, the petitioner was in custody and was charged only with escaping from the Chilton County Jail. The petitioner was advised of his Miranda rights before questioning began. The petitioner admitted that he had escaped from the Chilton County Jail, but denied any knowledge of the robbery. After the petitioner had been questioned "for some time," Mims asked him the following question: "[W]hat if I told you that we have [Paul] Thibodeaux ¹ and he was found with a bullet between his eyes; what would you say if I told you that he was found?" At the time this question was asked, Henderson and Mims were well aware that Paul Thibodeaux was not dead. Investigator Henderson testified as to the petitioner's immediate reaction to the question: "Well, the first thing I noticed about him he swallowed real hard and he said, look, let me tell you something, that I didn't kill the man. I did not pull that trigger; Rubyn Smith did that." Sometime after the question was asked of the petitioner, he signed a statement confessing to the robbery at Martin's Mercantile. The petitioner was then informed that Thibodeaux was, in fact, alive.

The petitioner contends that the trial court erred to reversal in denying his motion to suppress the confession. He argues that the confession was the product of coercive police conduct and, thus, was not made voluntarily, knowingly, and intelligently. We agree.

The law with regard to the admissibility of a confession is aptly stated in Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978):

"A confession is presumed to be involuntary. Before its admission into evidence there must be evidence addressed to the trial judge sufficient to rebut that presumption and a showing that the confession was made without influence of either hope or of fear, unless the attending circumstances affirmatively disclose the voluntariness of the confession. Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973); Bush v. State, 282 Ala. 134, 209 So.2d 416 (1968). In order to be admissible a confession must be free and voluntary and cannot be the result of any direct or implied promises, however slight. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 83 S.Ct. 448, 9 L.Ed.2d 357 (1963); Bell v. Alabama, 5 Cir., 367 F.2d 243, cert. denied, 386 U.S. 916, 87 S.Ct. 859, 17 L.Ed.2d 788 (1966); Wallace, supra. The question of whether a confession was obtained by coercion or improper inducement can be determined only by examination of all the attendant circumstances. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Wallace, supra. Each case must stand or fall on its own merits for the constitutional inquiry into the issue of voluntariness requires more than a mere 'color-matching of cases.' Beecher v. Alabama, 389 U.S. 35, 88 S.Ct. 189, 191, 19 L.Ed.2d 35 (1967). The true test of determining whether extrajudicial confessions are voluntary is whether the defendant's will was overborne at the time he confessed and therefore not the product of a rational intellect and a free will. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Elliott v. State, 338 So.2d 483 (Ala.Cr.App.1976)."

Before a confession can be admitted, the trial court must be satisfied by a preponderance of the evidence that it was voluntarily made. This finding will not be disturbed on appeal, unless it is evident that the determination was palpably contrary to the weight of the evidence. Ex parte Singleton, 465 So.2d 443 (Ala.1985). The state's evidence was insufficient in this case to show that the petitioner's confession was voluntarily made.

We view the statement of Chief Deputy Mims as being an affirmative misrepresentation to the petitioner that he (the petitioner) was suspected of killing Paul Thibodeaux. At the time the statement was made to the petitioner, both Henderson and Mims were well aware that Thibodeaux was not dead. The petitioner, clearly taken aback, denied the killing, but apparently confessed at some point during the interrogation after the misrepresentation had been made. It is apparent to us that the interrogating officers in this case were trying to get the petitioner to confess to the robbery at Martin's Mercantile by suggesting to him that Thibodeaux had been killed, the implication being that the petitioner might avoid prosecution for the murder of Thibodeaux if he confessed to the robbery. The state failed to introduce evidence sufficient to show that the petitioner's will was not overborne at the time he confessed. The conclusory testimony of Investigator...