Ex parte Whisenant

• Decision Date: 25 January 1985
• Parties: Ex parte Darrell D. WHISENANT. (Re: Darrell D. Whisenant v. State of Alabama). 83-824.
• Court: Alabama Supreme Court

Page 1006

466 So.2d 1006

Ex parte Darrell D. WHISENANT (Re: Darrell D. Whisenant v. State of Alabama).

83-824.

Supreme Court of Alabama.

Jan. 25, 1985.

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

Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for respondent.

PER CURIAM.

Petitioner Darrell Whisenant, a juvenile, was taken into custody in connection with an investigation into the murder of Alan Frix, the burglary of Frix's residence, and the theft of Frix's automobile. After allegedly being given his Miranda rights, Whisenant made oral and written statements implicating himself in the crimes. A petition was filed seeking to transfer Whisenant from juvenile court to circuit court for prosecution as an adult. Whisenant's confession was offered at the transfer hearing to establish probable cause. The juvenile court, after consideration of the factors listed in Code 1975, § 12-15-34(d), granted the petition. On appeal, the Court of Criminal Appeals affirmed the decision. 466 So.2d 995. We granted certiorari to consider the question whether Whisenant's confession was admissible at the transfer hearing.

Whisenant contends that the statement was inadmissible because he was not informed that he had a right to communicate with a parent or guardian, as is required by A.R.J.P. 11(A)(4). Rule 11(A) provides:

"(A) When the child is taken into custody, he must be informed of the following rights by the person taking him into custody:

"(1) that he has the right to counsel;

"(2) that if he is unable to pay a lawyer and if his parents or guardian have not provided a lawyer, one can be provided at no charge;

"(3) that he is not required to say anything and that anything he says may be used against him; and

"(4) if his counsel, parent, or guardian is not present, that he has a right to communicate with them, and that, if necessary, reasonable means will be provided for him to do so."

Rule 11(A)(1), (2), and (3), taken together, are substantially the same as the warnings required in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). By virtue of Rule 11(A)(4), this Court included an additional warning for the protection of juveniles. Given the applicability of the exclusionary rule to the first three warnings mandated by Miranda, the threshold question, then, is whether the exclusionary rule is equally applicable to the fourth requisite. We think this question is self-answering. The very inclusion of this fourth requisite in Rule 11(A), as an additional right to be accorded children within the protection of that rule, precludes any rational basis for distinguishing the treatment of this fourth warning from that accorded the first three.

The fallacy of the rationale employed by the Court of Criminal Appeals is demonstrated in the following sentence: "Neither Rule 11 or Rule 21 requires that the juvenile actually be advised by counsel or parent before waiving his rights." This treatment of the requisites prescribed by Rule 11 places subparagraph (4) on a different level, or treats it as being of a different quality, than the warnings listed under subparagraphs (1), (2), and (3). In reality, each of the four requisites stands on the same footing. To omit the fourth warning is as fatal as to omit of any one of the first three.

It is not a matter of a competent juvenile's capacity to waive his rights against self-incrimination. Rather, the question is whether he was advised of each of the four requisite elements prescribed by Rule 11(A). If any one or more of these warnings are omitted, the use in evidence of any statement given by the child is constitutionally proscribed. (It is worthy of note that the ongoing debate surrounding the court-created exclusionary rule with respect to Fourth Amendment rights is not here involved. The Fifth Amendment's protection against self-incrimination bears its own exclusionary rule.)

We turn now to the ultimate question, which, admittedly, is more difficult. May Whisenant's statement, concededly inadmissible in guilty/innocent determination proceedings, nevertheless be admissible in a probable cause hearing to determine whether he should be transferred to the circuit court and tried as an adult? In other words, is his right not to be compelled to give evidence against himself (Art. 1, § 6, Ala. Const.1901), as that constitutional proscription is implemented by the guidelines of A.R.J.P. 11(A), being compromised by allowing his otherwise inadmissible extrajudicial statement to be used in a transfer hearing?

Code 1975, § 12-15-66(b), is a codification of the general law made applicable to children. It reads in part:

"An extrajudicial statement which would be constitutionally inadmissible in a criminal proceeding shall not be received in evidence over objection."

The Court of Criminal Appeals, citing § 12-15-66(b) in Ash v. State, 424 So.2d 1381 (Ala.Cr.App.1982), held that the admissibility issue with respect to the child's statement was properly raised and addressed at a transfer hearing. This Court, however, in Winstead v. State, 371 So.2d 418 (Ala.1979), and in Snow v. State, 423 So.2d 220 (Ala.1982), held that consideration of constitutional issues concerning admissibility of a child's statement, while appropriate in the later guilty/innocent determination proceeding, was not appropriate in a transfer hearing because of the probable cause nature of such a hearing.

On reflection, we are now clear in our resolve that the Court of Criminal Appeals correctly ruled in Ash and that this Court incorrectly ruled in Winstead and Snow. Winstead's emphasis on the proposition that, because the transfer hearing is not held to determine innocence or guilt--and thus the strict rules of evidence do not apply--overlooks an essential element in the nature of the evidence in question. We are not here speaking of evidence in the ordinary sense of the word. Indeed, we are not talking about admissibility as governed by the rules of evidence.

Instead, we are talking about evidence in the form of an inculpatory statement of the accused, the admission of which is violative of his constitutional right to remain silent, unless he has first been advised of that right, as implemented by statutes, case law, and rules of court, and, upon being so advised, has voluntarily waived that fundamental right. We find nothing in the nature and character of a transfer hearing, vis-a-vis a guilty/innocent determination hearing, that transcends the absolutism of the fundamental guarantee against self-incrimination.

At the transfer hearing, his statement was offered as "evidence against himself," within the very proscriptive language of the State Constitution. To relax the strict rules of evidence for purposes of the transfer hearing, when its application is restricted to matters ordinarily governed by the rules of evidence, is one thing; but to carry its application to the extent of allowing the admission of an otherwise inadmissible statement of the accused is constitutionally impermissible. The right against self-incrimination protected by the State Constitution with respect to the trial on the merits is the same right that is likewise protected with respect to the transfer hearing.

Therefore, we reverse the judgment of the Court of Criminal Appeals and remand this cause for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

FAULKNER, JONES, ALMON, SHORES, EMBRY and ADAMS, JJ., concur.

TORBERT, C.J., and MADDOX and BEATTY, JJ., dissent.

TORBERT, Chief Justice (concurring in part and dissenting in part).

I dissent from that part of the majority opinion which holds that constitutional issues concerning the confession can be raised at the transfer hearing. Before I address that issue, I think it would be useful to explain why the warning set forth in A.R.J.P. 11(A)(4) must be given.

I begin with a review of the reasons for the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Supreme Court spoke of the Fifth Amendment privilege:

"[It] serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently 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. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored."

Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct. 1602, 1624, 16 L.Ed.2d 694 (1966). In order to protect the privilege, the Court held that before a statement obtained would be admitted, the individual must be given what are now known as the Miranda rights. Voluntary statements are admissible. Id. at 478, 86 S.Ct. at 1629-30. The Miranda rights are designed to make an individual in custody aware of the privilege against self-incrimination. Without a showing that one had a recognition of his rights, it is difficult to establish that those rights were knowingly, intelligently, and voluntarily relinquished and that any statement was made voluntarily.

"The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is...