Ex parte Slaton

• Decision Date: 12 July 1996
• Citation: 680 So.2d 909
• Parties: Ex parte Nathan D. SLATON. (Re Nathan D. Slaton v. State). 1941060.
• Court: Alabama Supreme Court

Page 909

680 So.2d 909

Ex parte Nathan D. SLATON.

(Re Nathan D. Slaton v. State).

1941060.

Supreme Court of Alabama.

July 12, 1996.

Oliver W. Loewy, LaJuana Davis, Montgomery, for Petitioner.

Jeff Sessions, Atty. Gen., and Sandra J. Stewart, Deputy Atty. Gen., for Respondent.

On Application for Rehearing

HOOPER, Chief Justice. ¹

The opinion of May 10, 1996, is withdrawn and the following is substituted therefor.

Nathan Slaton was indicted and convicted of the capital murder of Modenia Phillips. The murder was made a capital offense because it was committed during the course of a rape. See Ala. Code 1975, § 13A-5-40(a)(3). The murder occurred on May 28, 1987. Slaton was 17 years old at the time of the offense but, upon motion of the State, was tried as an adult.

Voir dire examination of the prospective jurors began on April 2, 1990, and lasted for three days. Trial began on April 5 and lasted until April 11. The jury found Slaton guilty on April 11. The sentencing phase of the trial began April 12. The jury recommended that Slaton receive the death penalty. After hearing arguments and testimony, the trial court on May 22, 1990, sentenced Slaton to death by electrocution. Slaton appealed to the Court of Criminal Appeals, which remanded the case on two issues: pretrial excusal of veniremembers by the trial judge's secretary, and the trial court's consideration of Slaton's New York juvenile adjudication. Slaton v. State, 680 So.2d 877 (Ala.Crim.App.1993). On return from remand, the Court of Criminal Appeals affirmed the conviction and sentence on January 13, 1995. Slaton v. State, 680 So.2d 879 (Ala.Crim.App.1995). It subsequently denied Slaton's application for rehearing. Slaton raises 25 issues on this certiorari review. We address 18 of those issues and adopt the holding of the Court of Criminal Appeals as to the remaining issues.

Issue 1

Did the court's instruction to the jury at the guilt phase of the trial violate Slaton's rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution? From a careful reading of the record, we conclude that the instruction was designed to explain to the jury why the entire statement given by Slaton to the police was not before them as evidence. Slaton argues that it is improper for the court to give an instruction that informs the jury that there was evidence the prosecution would have presented, but for evidentiary rules that prevented it from doing so. The instruction stated as follows:

"The defendant's statement herein was not admitted nor offered in bulk because there were some inadmissible matters contained in the statement that could not come before you for your consideration. The reason that it was not offered or admitted in bulk was for that reason."

(R.T. 2101.)

The trial court's jury charge was simply an explanation to the jury as to why the statement was not going to be admitted into evidence. It served to clarify to the jury why it had not heard the whole statement. The trial court's jury instruction was not erroneous. Dooley v. State, 575 So.2d 1191, 1194 (Ala.Crim.App.1990); Thompson v. State, 503 So.2d 871, 879 (Ala.Crim.App.1986).

Issue 2

Was evidence regarding Slaton's statement improperly admitted? Slaton claims he invoked his Miranda right to remain silent and that the police made implied promises to him. Slaton was arrested by the Albertville police and taken to the Albertville police station, where he made a taped statement. Slaton contends that while being interrogated, he invoked his right to remain silent and that his invocation of that right was ignored by the Albertville police. Slaton made this statement to the police: "Oh God, I don't feel like going through all this." Slaton claims that statement meant that he did not want to continue the questioning and was invoking his right to remain silent.

Slaton did not clearly assert--and gave no indication--that he was invoking his right to remain silent. In Miranda v. Arizona, 384 U.S. 436, at 476-79, 86 S.Ct. 1602, at 1628-31, 16 L.Ed.2d 694 (1966), the United States Supreme Court held that the police must give certain warnings before they can question a person under arrest. Statements made by an arrested person who has not received the warnings are inadmissible in court. One of the rights established in Miranda was the suspect's right to end questioning at any time. 384 U.S. at 474, 86 S.Ct. at 1627-28. "Once informed of Miranda rights, an accused has the burden of indicating in some manner his wish to remain silent." Lightbourne v. Dugger, 829 F.2d 1012 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988); United States v. Alegria, 721 F.2d 758 (11th Cir.1983). In Lightbourne,

"Investigator LaTorre advised [the defendant] of his Miranda rights and questioned him after [the defendant] responded that he understood these rights and 'had nothing to hide.' At some point during the interview, [the defendant] asked whether he had to continue with the interrogation. LaTorre asked [the defendant] what he meant by that question and whether he wanted to take a break. At that point, and apparently without elaboration or indication that [the defendant] desired a respite, [the defendant] continued the conversation."

829 F.2d at 1017. The Eleventh Circuit Court of Appeals held that a defendant "who asked during interrogation whether he had to continue with [the] interrogation[,]" was not coerced into continuing the interrogation. Lightbourne, 829 F.2d at 1017-19.

Context determines the meaning of Slaton's statement. That statement is found on page 29 of the second supplemental record. Slaton was describing in chronological order what he claimed had happened at the victim's house on the day of the murder. Slaton told police that the victim forced him at gunpoint into her bedroom. Slaton claims the victim then accused him of breaking into her house and asked him if he had a girlfriend. The police officer taking Slaton's statement then asked him: "Then what happened?" Slaton then stated, "Oh, God, I don't feel like going through all this." Slaton's next statements described the victim forcing Slaton, at gunpoint, to have sex with her. There is no reason to think Slaton was asking that the questioning be stopped. Slaton was, in essence, saying he did not like talking about the sexual details of what he says happened next. The context indicates that he was not ambiguously or equivocally asserting his right to remain silent. The Court of Criminal Appeals correctly rejected Slaton's claim that his Miranda rights were violated.

Slaton also claims on this certiorari review, for the first time, that his statement was induced by an implied promise. The detectives told him they wanted to hear his side of the story, saying, "We'd love for you to tell us your side of the story." Slaton claims that this statement by the police officers contained an implied promise. Slaton argues that the police implied by this statement that they were his allies. Slaton contends that this implication by the police meant that his assisting them could, in turn, benefit him. Slaton claims this was his understanding and that he was manipulated by this statement. There is simply no improper inducement in a police officer's saying that he or she wants to hear a suspect's story. Slaton's claim is without merit.

Issue 3

Did the trial court commit reversible error when it failed to instruct the jury that it could reject Slaton's confession if it was not made voluntarily? The trial court instructed the jury: "[You] shall consider the circumstances under which the alleged statement was obtained and the appliances [sic] by which it was supposedly elicited, including the situation and mutual relations of the parties." (R.T.2099.) The trial court did not tell the jury that it had already determined the statement was made voluntarily; such a statement is proscribed by Ex parte Singleton, 465 So.2d 443 (Ala.1985). The instruction was not erroneous.

Issue 4

Did the trial court err in admitting testimony based on a transcript of an unauthenticated tape recording of Slaton's confession? At trial, one of the detectives who questioned Slaton on the night of his arrest testified as to Slaton's statement. The officer, Detective Edsel Whitten, testified from his memory, part of his recollection being refreshed by a transcript of the recording. Neither the tape nor the transcript was offered into evidence, nor was the tape authenticated. Slaton contends that because the tape was never authenticated the testimony based on a memory refreshed by the transcript was not properly admitted into evidence. In United States v. Scott, 701 F.2d 1340 (11th Cir.1983), the Eleventh Circuit Court of Appeals wrote:

"[T]he Government elicited through certain witnesses' testimony the pertinent information contained in the inadmissible documents. In doing so, the witnesses were allowed by the trial court to use the applications to refresh their recollection.

"Under Fed.R.Evid. 612, refreshing one's recollection is permitted. The trial court carefully instructed the witnesses that they were permitted to testify only as to what they independently remembered."

701 F.2d at 1346. The Court of Criminal Appeals, in Walker v. State, 445 So.2d 955 (Ala.Crim.App.1983), also stated:

"... C. Gamble, McElroy's Alabama Evidence § 116.02(6) (3d ed. 1977), says 'A witness may refer to a writing for the purpose of refreshing his recollection without first, as a condition precedent, having shown that it is necessary for his recollection to be refreshed.' "

445 So.2d at 957.

The transcript was authenticated by Detective Tommy Cole, and Detective Whitten used the transcript to refresh his recollection. Neither the tape recording, nor the transcript of that recording or any portion of that transcript, was ever offered or admitted into evidence at Slaton's trial. While looking at the transcript, Officer Whitten was asked...