Ex parte Neelley, 84-872

• Decision Date: 27 June 1986
• Docket Number: No. 84-872,84-872
• Parties: Ex parte Judith Ann NEELLEY. (In re Judith Ann NEELLEY v. STATE).
• Court: Alabama Supreme Court

Page 697

494 So.2d 697

Ex parte Judith Ann NEELLEY.

(In re Judith Ann NEELLEY v. STATE).

No. 84-872.

Supreme Court of Alabama.

June 27, 1986.

Rehearing Denied Sept. 19, 1986.

Robert B. French, Jr., Fort Payne, for petitioner.

Charles A. Graddick, Atty. Gen. and Rivard Melson and William D. Little, Asst. Attys. Gen., for respondent.

BEATTY, Justice.

Certiorari was granted in this case under Rule 39(c), A.R.App.P. The facts are treated extensively in the opinion of the Court of Criminal Appeals. On appeal to that court, the petitioner's conviction of the capital offense of murder during a kidnapping, Code of 1975, § 13A-5-40(a)(1), and her subsequent sentence by the trial court to death by electrocution, were affirmed. Neelley v. State, --- So.2d ---- (Ala.Crim.App.1985).

Petitioner has raised before this Court the same issues she presented to the Court of Criminal Appeals. Having reviewed the matters presented by the briefs, oral argument, and the record, this Court has concluded that the decision of the Court of Criminal Appeals must be affirmed. Moreover, only certain aspects of that decision need be addressed in this opinion.

I.

Whether the failure or refusal to inform the petitioner that a lawyer was in the building in which she was being interrogated vitiated her confession.

The Court of Criminal Appeals did not decide this issue, holding that any error in the admission of the confession in question was harmless error. However, following the grant of certiorari by this Court, the United States Supreme Court decided Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), holding that neither Fifth nor Sixth Amendment rights are violated when police authorities do not inform a suspect of an attorney's efforts to contact the suspect. In so holding, that Court made the following pertinent observations at 475 U.S. 412, 106 S.Ct. 1143:

"At the outset, while we share respondent's distaste for the deliberate misleading of an officer of the court, reading Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ], to forbid police deception of an attorney 'would cut [the decision] completely loose from its own explicitly stated rationale.' Beckwith v. United States, 425 U.S. 341, 345, 96 S.Ct. 1612, 1615, 48 L.Ed.2d 1 (1976). As is now well established, '[t]he ... Miranda warnings are "not themselves rights protected by the Constitution but [are] instead measures to insure that the [suspect's] right against compulsory self-incrimination [is] protected." ' New York v. Quarles, 467 U.S. 649, 654, 104 S.Ct. 2626, 2631, 81 L.Ed.2d 550 (1984), quoting Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974). Their objective is not to mold police conduct for its own sake. Nothing in the Constitution vests in us the authority to mandate a code of behavior for state officials wholly unconnected to any federal right or privilege. The purpose of the Miranda warnings instead is to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against abridgement of the suspect's Fifth Amendment rights. Clearly, a rule that focuses on how the police treat an attorney--conduct that has no relevance at all to the degree of compulsion experienced by the defendant during interrogation--would ignore both Miranda 's mission and its only source of legitimacy.

"Nor are we prepared to adopt a rule requiring that the police inform a suspect of an attorney's efforts to reach him. While such a rule might add marginally to Miranda 's goal of dispelling the compulsion inherent in custodial interrogation, overriding practical considerations counsel against its adoption. As we have stressed on numerous occasions, '[o]ne of the principal advantages' of Miranda is the ease and clarity of its application. Berkemer v. McCarty, 468 U.S. 420, 430, 104 S.Ct. 3138, 3145, 82 L.Ed.2d 317 (1984); see also New York v. Quarles, supra, 467 U.S., at 660, 104 S.Ct., at 2634 (concurring opinion); Fare v. Michael C., 442 U.S., at 718, 99 S.Ct., [2560] at 2568. ..."

The Court also wrote, at 475 U.S. 412, 106 S.Ct. at 1144:

"The position urged by respondent would upset this carefully drawn approach in a manner that is both unnecessary for the protection of the Fifth Amendment privilege and injurious to legitimate law enforcement. Because, as Miranda holds, full comprehension of the rights to remain silent and request an attorney are sufficient to dispel whatever coercion is inherent in the interrogation process, a rule requiring the police to inform the suspect of an attorney's efforts to contact him would contribute to the protection of the Fifth Amendment privilege only incidentally, if at all. This minimal benefit, however, would come at a substantial cost to society's legitimate and substantial interest in securing admissions of guilt...."

The Court further stated at 475 U.S. 412, 106 S.Ct. at 1146:

"Questions of precedent to one side, we find respondent's understanding of the Sixth Amendment both practically and theoretically unsound. As a practical matter, it makes little sense to say that the Sixth Amendment right to counsel attaches at different times depending on the fortuity of whether the suspect or his family happens to have retained counsel prior to interrogation. Cf. [Y. Kamisar, Police Interrogation and Confessions (1980) ], at 220-221. More importantly, the suggestion that the existence of an attorney-client relationship itself triggers the protections of the Sixth Amendment misconceives the underlying purposes of the right to counsel. The Sixth Amendment's intended function is not to wrap a protective cloak around the attorney-client relationship for its own sake any more than it is to protect a suspect from the consequences of his own candor. Its purpose, rather, is to assure that in any 'criminal prosecutio[n],' U.S. Const., Amdt. 6, the accused shall not be left to his own devices in facing the ' "prosecutorial forces of organized society," ' Maine v. Moulton, 474 U.S., at ---, 106 S.Ct., at 484 (quoting Kirby v. Illinois, 406 U.S., at 689, 92 S.Ct., [1877] at 1882 ....

" ... The clear implication of the holding, and one that confirms the teaching of [United States v. ] Gouveia, [467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984) ], is that the Sixth Amendment right to counsel does not attach until after the initiation of formal charges."

Applying Moran v. Burbine to the circumstances of the present case, we hold that neither petitioner's Fifth nor Sixth Amendment rights were violated by the failure of the interrogating authorities (who had given petitioner the Miranda warnings) to inform her of the presence of an attorney who had been sent at the request of a third party. Nor do we find this conduct by law enforcement officials violative of the constitution of this state.

II.

Whether petitioner's confession was voluntary.

The opinion of the Court of Criminal Appeals accurately summarized the facts on which that court concluded that the Miranda warning was given to petitioner, and that she voluntarily waived her rights. The record fully supports that conclusion. We quote, from the suppression hearing, the testimony of special agent Burns, who was the first officer to interrogate petitioner:

"Q. Did you talk to Mrs. Neelley?

"A. Yes, I did.

"Q. On October 14, 1982?

"A. Yes, sir.

"Q. Without asking you what she said, did you talk to her about the murder of Lisa Ann Millican on that occasion?

"A. Yes, sir; I did.

"Q. Before you asked her anything about that or any other things, I'll ask you if you gave her what's known as the Miranda warning or advised her of her constitutional rights regarding the making of a statement.

"A. Yes, I did.

"Q. What did you do about that? How did you go about it?

"A. I read to her from our standard form, FD-395, which is entitled 'Interrogation Advice of Rights--Your Rights.'

"Q. Is that a document?

"A. Yes; it is.

"Q. What did you do with the document?

"A. I read it aloud to her.

"....

"Q. I'll ask you to read to the Court what you read to Mrs. Neelley at that time. When was it, please?

"A. It was read at 6:50 p.m., Georgia time, on 10-14-82 in Murfreesboro, Tennessee. The document is entitled 'Interrogation Advice of Rights--Your Rights.' It begins: 'Before we ask you any questions you must understand your rights. You have the right to remain silent. Anything you say can be used against you in Court. You have the right to talk to a lawyer for advice before we ask you any questions and to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish. If you decide to answer questions now without a lawyer present, you will still have a right to stop answering at any time. You will also have a right to stop answering at any time before you talk to a lawyer.' Then it has a paragraph entitled, 'Waiver of Rights. I have read this statement of my rights, and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.'

"Q. You read that to Mrs. Neelley?

"A. Yes; I did.

"....

"Q. And you stated you read this to her. Did you allow her to read it?

"A. Yes. After I finished reading the form, I gave it to her and told her to read it.

"Q. Did you know if she read it or not?

"A. She looked at the form, read part of it aloud. After she had finished reading it, I asked her if she was willing to sign the waiver section of the form.

"Q. What did she say?

"A. She said that she thoroughly understood what the form said but that she did not want to sign the form. She also said that she was willing to talk at that time without an attorney present.

"Q. You told her that she could have an attorney if she desired.

"A. ...