Gilchrist v. State

• Decision Date: 18 January 1991
• Docket Number: 1 Div. 942
• Parties: Robert S. GILCHRIST v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 165

585 So.2d 165

Robert S. GILCHRIST v. STATE.

1 Div. 942.

Court of Criminal Appeals of Alabama.

Jan. 18, 1991.

Rehearing Denied May 31, 1991.

Certiorari Denied Aug. 23, 1991

Alabama Supreme Court 1901444.

Paul D. Brown, Mobile, for appellant.

Don Siegelman, Atty. Gen., and Cecil G. Brendle, Jr., Asst. Atty. Gen., for appellee.

BOWEN, Judge.

In 1982, Robert Steven Gilchrist was indicted for capital murder, convicted of murder, and sentenced to life imprisonment. His conviction was affirmed on direct appeal. Gilchrist v. State, 466 So.2d 988 (Ala.Cr.App.1984), cert. quashed, Ex parte Gilchrist, 466 So.2d 991 (Ala.1985). In quashing its writ of certiorari, the Alabama Supreme Court held that the District Attorney had improperly assumed the dual roles of both witness and prosecutor at Gilchrist's trial, but that Gilchrist was precluded from challenging the impropriety on appeal because his lawyer had failed to object in the trial court.

Gilchrist subsequently filed a petition for writ of error coram nobis, alleging that his trial counsel's failure to object to the District Attorney's conduct denied him the effective assistance of counsel at trial. This court agreed and, in 1988, reversed the conviction and remanded the cause for a new trial. Gilchrist v. State, 534 So.2d 1120 (Ala.Cr.App.1988). In 1989, Gilchrist was retried for murder, convicted of that offense, and sentenced to life imprisonment. On this appeal of that conviction, he raises two issues.

In April 1982, 20-year-old Christina Zane disappeared. The initial investigation revealed that the defendant was the last person with whom she had been seen. On May 11, two Mobile police officers went to the defendant's apartment to question him regarding Ms. Zane's disappearance. The defendant was not at home, but the officers met and talked with Derenda Henderson, the defendant's sometime live-in girlfriend. When the officers inquired whether Ms. Henderson knew Ms. Zane, Henderson replied that she did not. The officers told Ms. Henderson they thought the defendant had been "seeing" Ms. Zane and they said they would like to talk to the defendant about Zane's disappearance.

Later that afternoon, Ms. Henderson confronted the defendant with the information she had received from the police and she drove the defendant to the police station, where he made the first of five inculpatory statements regarding Christina Zane. The defendant told the police that he met Christina Zane at a bar, went home with her for the evening, and saw her again a few days later when she came to his apartment. On the second occasion, Zane, the defendant, and the defendant's male roommate had a "sex orgy," after which, according to the defendant, Christina Zane left his apartment and he never saw her again.

After he talked to the police on May 11, the defendant was released and the authorities continued their investigation. Ms. Henderson testified at trial that, in a series of conversations she had with the defendant from May 11 to early June 1982, the defendant recounted to her how he had killed Christina Zane and hidden her body in a swampy, wooded area. On June 24, the defendant was incarcerated in the Mobile City Jail for an unrelated offense. Ms. Henderson gave statements to the police on July 6, July 7, and July 19. Those statements are not contained in the record. The defendant was served with an arrest warrant for the instant offense on July 15. The defendant made four additional statements after he was incarcerated. At trial, the defendant testified that he was present at the scene of the homicide but did not kill Zane. He claimed that Ms. Henderson, in a jealous rage at finding him with Christina Zane, murdered the girl. Zane's body was never found.

I

The defendant first argues that the totality of the circumstances surrounding his prosecution was so marred by police misconduct and prosecutorial overreaching that the indictment against him should have been quashed. He argues that the Mobile police devised a plan to circumvent his Fifth and Sixth Amendment rights to counsel by interrogating him in the absence of his counsel and by using his girlfriend, Derenda Henderson, and his cellmate, Steve Puckett, to extract inculpatory statements from him after he had invoked his right to deal with the police only through counsel. He also argues that Mobile District Attorney Chris Galanos exhibited prosecutorial vindictiveness by seeking a capital murder indictment against him because he refused to disclose the location of the victim's body.

The first argument was not raised at trial in the context of a motion to quash the indictment and was made only in relation to the claimed inadmissibility of the defendant's statements. It is, therefore, not preserved for review in the present context, but will be discussed in Part II of this opinion dealing with the admissibility of the defendant's statements.

The second argument was raised before the defendant's first trial and was incorporated by reference at the defendant's second trial when defense counsel refiled "all prior motions." The following response was filed prior to the first trial by the District Attorney:

"[O]n July 21, 1982, the District Attorney, in response to a query from the defendant, did tell the defendant that if he would tell where the body of Christina Zane was buried, he (the District Attorney) would charge the defendant with murder and recommend a bond of $50,000 to the Court. Conversely, if the defendant refused to disclose the location of Miss Zane's body, he would be charged with capital murder. It is of salient importance to note that (a) this plea bargaining was at the request of the defendant, and (b) this conversation occurred prior to the [presentation of the] defendant's case to the Grand Jury."

The question of the prosecutor's alleged vindictiveness in seeking a capital murder indictment, which was at issue in the first (capital) trial, is simply not at issue on this appeal, which follows the defendant's trial for non-capital murder. Even assuming the first trial was marred by the vindictiveness of the prosecutor's seeking the greater charge, the defendant's remedy for that error would have been a new trial on the lesser charge of murder--exactly what he in fact received, albeit on other grounds.

Prior to the second trial, the court granted a defense motion in limine requesting "the State ... to refrain from reference to or mention of capital murder or any possible penalties as a result of a conviction for capital murder [because] the defendant is charged with murder." Our review of the trial record reveals that the order in limine was scrupulously followed.

Moreover, there is no violation of due process when a prosecutor carries out a threat made during plea negotiations that, unless the accused agrees to forgo a constitutional right, the prosecutor will have the accused indicted for the more serious of two possible charges to which he is subject. Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978). In Bordenkircher, the accused was indicted for uttering a forged instrument. The state's attorney offered to recommend a reduced 2 to 5-year sentence if the accused would plead guilty, but threatened to seek a reindictment under the habitual offender provision if the accused insisted on going to trial. The accused pleaded not guilty, was convicted of the enhanced offense, and received a mandatory life sentence. 434 U.S. at 358-59, 98 S.Ct. at 665-66. The Supreme Court observed that the " 'give-and-take negotiation common in plea bargaining between the prosecutor and the defense, which arguably possess relatively equal bargaining power,' " is distinguishable from "the State's unilateral imposition of a penalty," 434 U.S. at 362, 98 S.Ct. at 667, upon a defendant who appeals his conviction, such as which occurred in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974), and North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). The Court concluded that "the course of conduct engaged in by the prosecutor in [Bordenkircher ], which no more than openly presented the defendant with the unpleasant alternatives of forgoing trial or facing charges on which he was plainly subject to prosecution, did not violate the Due Process Clause of the Fourteenth Amendment." Bordenkircher, 434 U.S. at 365, 98 S.Ct. at 669.

Here, prior to the first trial, the trial court reviewed in camera the testimony of three witnesses who appeared before the grand jury and concluded that "ample evidence was presented to the Grand Jury to establish probable cause and to justify the [capital] indictment returned against the defendant."

II

Statements made by the defendant on five separate occasions were admitted against him in the instant trial. He made inculpatory admissions on May 11, July 8, July 20, July 21, and August 4. On this appeal, he challenges the admissibility of only two of the statements, those made on July 20 and July 21. The defendant claims that the statements should have been suppressed because they were obtained in violation of his Fifth and Sixth Amendment rights to counsel, and because they were involuntarily induced or coerced.

We hold, first, that the defendant had no Sixth Amendment right to counsel at the time of the July 20 or 21 statements. Decisions by the United States Supreme Court "have long recognized that the [Sixth Amendment] right to counsel attaches only at or after the initiation of adversary judicial proceedings against the defendant." United States v. Gouveia, 467 U.S. 180, 187, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146 (1984). "By its very terms, [the Sixth Amendment] becomes applicable only when the government's role shifts from investigation to accusation." Moran v. Burbine, 475 U.S. 412, 430, 106 S.Ct. 1135, 1146, 89 L.Ed.2d 410 (1986). "[T]he Sixth Amendment right to counsel does not attach until after the initiation of formal...