Harris v. State, 3 Div. 503

• Court: Alabama Court of Criminal Appeals
• Citation: 420 So.2d 812
• Docket Number: 3 Div. 503
• Parties: Tommy J. HARRIS v. STATE.
• Decision Date: 24 August 1982

Page 812

420 So.2d 812 Tommy J. HARRIS
v.
STATE. 3 Div. 503. Court of Criminal Appeals of Alabama. Aug. 24, 1982. Rehearing Denied Oct. 12, 1982.

Page 813

Jack W. Wallace, Jr., of Duffey & Wallace, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Billington M. Garrett, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Tommy J. Harris was indicted, tried, and convicted of the April 24, 1981, first degree robbery of the Cannon Oil station on Perry Hill Road in Montgomery. He was sentenced to eleven years' imprisonment. From that conviction he now appeals in forma pauperis.

Mr. Leroy McBride testified that on the evening of April 24, 1981, he was employed as the night attendant at the Cannon Oil service station on Perry Hill Road in Montgomery. He stated that during the latter part of the evening two black males approached the office. One drew an automatic pistol of unknown caliber, pointed it at his face and demanded the station's money. The robbers handed him a brown paper bag into which he placed over $100. The robbers then sprayed Mace into his eyes and fled heading toward a nearby apartment complex. McBride did not identify appellant as one of the robbers.

Victor Adams, an indicted co-defendant who pled guilty to the instant offense, testified that on April 24, he saw appellant and Horace and Johnny Flowers at a local Montgomery lounge. After talking for a while, the four got into appellant's car and drove to Spanish Gardens apartments, an apartment complex about fifty yards from the Cannon station. Adams testified that appellant parked the car and remained in it with him while the Flowers brothers exited and headed toward the station. Adams

Page 814

stated that they were going to "rob somebody." (R. 34) They carried with them a gun, can of Mace, brown bag, and an army coat. He testified that appellant and the Flowers planned the robbery.

Claiming surprise due to Adams' negative response, the State proved, through a prior statement, that Adams had stated that the gun and Mace belonged to appellant. At trial, Adams explained that he assumed they belonged to appellant because they were removed from the glove compartment.

After returning to the car, Adams heard Johnny Flowers state that he had dropped the holster to the gun to which appellant replied, "Don't worry about it, it won't matter." (R. 42) Appellant then drove away. The four later divided the money equally.

At the time of appellant's trial, Adams had been sentenced for the instant offense.

Montgomery police investigator R.H. Houlton ¹ testified that he investigated the instant incident and arrested appellant, Adams, and the Flowers. At police headquarters, he advised appellant of his Miranda rights which fully appear in the record. A proper voluntariness predicate was laid. Houlton stated that appellant refused to sign a written waiver of rights form but made an oral statement to him and Investigator T.H. Roper. Appellant stated that "he was involved in this robbery but ... did not want to tell us anything at the time until he talked to his parents." (R. 50)

The testimony of Investigator T.H. Roper of the Montgomery Police Department was in substance the same as that of Houlton. He testified that he remembered appellant stating "that he was involved in a robbery and other robberies, but that he did not want to make a signed statement or in writing at that time." (R. 55)

Roper's testimony concluded presentation of the State's case.

I

Appellant contends that the trial court erred in denying his motion to suppress his oral statement on the ground "[t]hat the statement was attained in a manner contrary to the Constitution of the United States and the State of Alabama and the laws promulgated under or pertaining thereto." (R. 141)

A pre-trial suppression hearing was held where Investigator Houlton testified that appellant made an oral statement at police headquarters after he had been arrested. Prior to making the statement, Investigator Houlton read appellant his Miranda rights from a rights and waiver form. Appellant stipulated that he was advised of his rights, but refused to sign the waiver form. Investigator Houlton testified that no one threatened, coerced, or induced appellant or promised him any benefit to make his statement. He testified that appellant stated that he understood his rights but did not want to sign anything.

Several minutes after being advised of his rights, appellant made an oral statement to Investigator Houlton. Appellant stated "... that he did commit the robbery we were investigating and he had committed other robberies in several counties in Alabama, but he did not want to give us any written statement until such time as he could talk to his parents." (R. 6)

Appellant testified that he was not advised of his right to an attorney and denied telling Investigator Houlton that he understood his rights. He denied making the above statement.

When the evidence on the circumstances surrounding a confession is conflicting on voir dire, the trial judge must determine its admissibility. If admitted, the controverted testimony for the accused goes to the jury on the confession's credibility. The trial judge need only be convinced from a preponderance of the evidence to find a confession or inculpatory statement to have been voluntarily made. The totality of the circumstances determines whether the accused

Page 815

has knowingly and intelligently waived his rights to assistance of counsel and to remain silent. Where the trial judge finds on conflicting evidence that the confession was voluntarily made, its finding will not be disturbed on appeal unless found to be palpably contrary to the weight of the evidence. A voluntariness predicate laid by the State is sufficient to establish prima facie that a confession was voluntarily made. Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981); Simpson v. State, 401 So.2d 263 (Ala.Cr.App.), cert. denied, 401 So.2d 265 (Ala.1981); and cases cited therein.

At the outset, we note that the instant case is not affected by the rule announced in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), as the facts do not support any claim whatsoever that appellant requested assistance of counsel prior to making his oral statement. See also, Hardy v. State, 409 So.2d 996 (Ala.Cr.App.1982); Warrick v. State, 409 So.2d 984 (Ala.Cr.App.1982).

In discussing waiver of the Miranda rights, the United States Supreme Court, in North Carolina v. Butler, 441 U.S. 369, 373-76, 99 S.Ct. 1755, 1757-59, 60 L.Ed.2d 286 (1979), stated:

"An express written or oral statement of waiver of the right to remain silent or of the right to counsel is usually strong proof of the validity of that waiver, but is not inevitably either necessary or sufficient to establish waiver. The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. As was unequivocally said in Miranda, mere silence is not enough. That does not mean that the defendant's silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution's burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.

....

"... Ten of the eleven United States Courts of Appeals and the courts of at least 17 States have held that an explicit...