Johnson v. State

• Decision Date: 22 May 1979
• Docket Number: 8 Div. 140
• Citation: 378 So.2d 1164
• Parties: Gary Wayne JOHNSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1164

378 So.2d 1164

Gary Wayne JOHNSON v. STATE.

8 Div. 140.

Court of Criminal Appeals of Alabama.

May 22, 1979.

Rehearing Denied June 26, 1979.

Ralph E. Slate, Decatur, for appellant.

Charles A. Graddick, Atty. Gen. and Edward E. Carnes, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The defendant, indicted for the second degree murder of Howard Curtis Francis by running over him with an automobile, was convicted of manslaughter in the first degree and sentenced to ten years' imprisonment. The defendant raises two main issues on appeal: (1) That his admissions of guilt to a prisoner in the county jail were involuntary and hence inadmissible because he had previously invoked his right to counsel, because the inmate was an agent for the State and because the inmate offered "hope" to the defendant; and (2) that the evidence against the defendant was insufficient to connect him with the homicide.

I

Initially, the defendant asserts the involuntariness of certain incriminating statements he allegedly made to a prisoner in the Marshall County jail.

The defendant was arrested on the evening of February 20, 1978. He was advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and signed a written waiver of those rights. The defendant was then questioned by the District Attorney and Deputy Sheriff Mark Bollinger. After answering some questions the defendant told these two officers that he felt they were trying to tie him into something that he did not do so he would like to have an attorney present. The defendant was not questioned further. The propriety of any statement elicited during this interview is not challenged. From the record it is undisputed that the interview was conducted in a proper and voluntary manner. During this interview Deputy Lucian Howard was not present. Deputy Howard testified, and there is no evidence to the contrary, that he had no information or knowledge that the defendant had requested the presence of an attorney.

On the evening of February 21, 1978, the day following the initial interview, Deputy Howard talked with the defendant in the investigator's office on the first floor of the courthouse. Before talking with the defendant he warned him of his Miranda rights. There is no evidence that the defendant expressed any desire to exercise any of his constitutional rights or that he gave Deputy Howard any indication that he did not want to talk without the presence of his attorney. Deputy Howard testified that he did not threaten, coerce, offer hope of reward or "anything like that" in order to elicit a statement from the defendant. Despite this predicate of voluntariness, the trial court only allowed the State to show that Deputy Howard and the defendant had a conversation. The trial court permitted Deputy Howard to testify as to what he said to the defendant but prevented Howard from testifying about what the defendant said to him.

During the conversation, Deputy Howard asked the defendant if he would like to talk with anyone on the first floor about him. The defendant then left the investigator's office and walked out into the cell block on the first floor where the minimum security prisoners, or trusties, were housed. The defendant went into the cell block by himself and remained about ten or fifteen minutes.

There were twenty-five or thirty prisoners in the minimum security cell block. One of them was a trusty prisoner named James Howard Duncan, who had been in the Marshall County jail for four years serving a sentence for a robbery conviction. Duncan testified that Deputies Howard and Bollinger entered with the defendant and "called out to me and the minimum security cell block and told us to tell Mr. Johnson what we thought of him (Howard), what kind of character he was." The defendant walked back to Howard's room and said "he was thinking about making a statement to Mr. Lucian Howard and wanted to know what kind of character he was", "what kind of person he was". Duncan told the defendant that Deputy Howard was honest. The defendant then talked to some other prisoners in the cell block for a few minutes.

After this the defendant returned to Duncan's room and had another conversation with Duncan. Duncan told the defendant that he had also "done time" for vehicular manslaughter. Duncan then asked the defendant if he was drunk when he ran over the man.

"And he (defendant) was sitting there and he lit up a cigarette and tears come in his eyes there and he said cigarette smoke in my eyes, you know, looked like he was about to cry but, of course, he said cigarette smoke, so . . . he said him and his wife had been having problems and he was all messed up and everything and . . ."

"And he said it was a accident, said it was a accident and it was all over before he knew what happened, and everything had went blank to him and when he said that at the same time Mr. Lucian Howard and Mark Bollinger came back into the first floor, so he got up and walked back out, and so they go back outside and I get up and walk up the hall and the Chief Investigator A. G. Lang was standing out in the other hall when he saw me . . . and I thought he's already doing it, and so Mr. Lang called me out and I walked down there and he said, what did the man say, and I said, well, the man said it was a accident . . ."

Duncan testified that he did not threaten or coerce the defendant but "tried to offer him hope". Trusty Duncan also stated that he had no conversation with any investigator from the Sheriff's office before the defendant entered the cell block; that there was no "pre-arrangement" between (him) and any investigator from the Sheriff's office or anybody else to talk to this man and try to get a statement from him or anything"; that in the three years that he had been a trusty, he had never been asked to talk to another prisoner and tell any officer what the prisoner said; and that no other prisoner had ever confessed to him.

The defendant argues that the incriminating statements he made to Trusty Duncan are inadmissible (1) because the defendant had previously requested to have an attorney present during questioning; (2) because he declined to be interrogated by Deputy Howard without counsel present; (3) because Trusty Duncan was an agent of the Sheriff's investigators; and (4) because Trusty Duncan offered the defendant "hope."

From the record the arguments of the defendant are grounded on speculation rather than fact. At trial the defendant presented absolutely no evidence whatsoever to contradict the voluntariness of his statements to Trusty Duncan before they were admitted into evidence. In his defense the defendant, as to this matter, testified that:

"They was trying to get me to make a confession, and he told me that he (Deputy Howard) could help me and that he could prove that he could help me and he wanted me to talk to Duncan for character."

The defendant denied telling Duncan that it was an accident and testified that he only told Duncan that he "didn't have anything to do with it" and that he "wasn't worried about the charges because (he) was innocent".

Although a defendant has declined to answer questions without an attorney present, the Miranda decision does not, in the absence of a request for counsel, mandate the presence of counsel before questioning may be resumed. Miller v. State, 337 So.2d 1360, 1362 (Ala.Cr.App.1976). "(A)n explicit statement of waiver is not invariably necessary to support a finding that the defendant waived the right to remain silent or the right to counsel guaranteed by the Miranda case." North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). A defendant's knowledge of or his assertion of his right to counsel may, under the totality of the circumstances, strongly evidence the fact that he knowingly waived counsel at a subsequent time. Thompson v. State, 347 So.2d 1371 (Ala.Cr.App.), cert. denied, Ex parte Thompson, 347 So.2d 1377 (Ala.1977), cert. denied, 434 U.S. 1018, 98 S.Ct. 740, 54 L.Ed.2d 756 (1978).

There is absolutely no evidence that the defendant refused or declined to be interrogated by Deputy Howard without counsel present. Even the defendant himself did not assert this on the witness stand.

Moreover there is absolutely no evidence that Trusty Duncan was acting as an agent for or on behalf of the Sheriff's office or any law enforcement officer when he talked with the defendant. There is no evidence to support a finding that the defendant was "tricked" into giving a statement. Kircheis v. State, 56 Ala.App. 526, 535, 323 So.2d 412, cert. denied, 295 Ala. 409, 323 So.2d 421 (1975).

Trusty Duncan's "offer of hope" to the defendant is not the type of offer of hope that vitiates a confession. From the context in which this "offer" was extended it is obvious that it was not any form of inducement to extract a confession or a statement from the defendant. The "offer of hope" was not made by Duncan to produce in the mind of the defendant some hope of favor or benefit to be secured by his confession. We interpret this "offer of hope", as apparently did the trial court, as being an offer of sympathy, understanding and reassurance extended by Trusty Duncan, as one who had been in that same position before, to the defendant. This "offer of hope" was not calculated to engender or encourage any idea in the mind of the defendant that his case would be lightened, meliorated, or more favorably dealt with if he confessed. Womack v. State, 281 Ala. 499, 205 So.2d 579 (1967).

A person inducing an accused to make a confession need not always be a law enforcement officer in order to render the confession inadmissible. Allen v. State, 53 Ala.App. 66, 297 So.2d 391, cert. denied, 292 Ala. 707, 297 So.2d 399 (1974). However, before a promise of benefit from a non-law enforcement officer will render a confession or incriminating statement involuntary, the circumstances...