Johnston v. State, 4 Div. 159

• Decision Date: 10 April 1984
• Docket Number: 4 Div. 159
• Parties: James W. JOHNSTON, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 152

455 So.2d 152

James W. JOHNSTON, alias v. STATE.

4 Div. 159.

Court of Criminal Appeals of Alabama.

April 10, 1984.

Rehearing Denied May 8, 1984.

Certiorari Denied July 20, 1984

Alabama Supreme Court 83-888.

Allen Edward Cook and Benton Persons, Andalusia, for appellant.

Charles A. Graddick, Atty. Gen., and Jennifer M. Mullins, Asst. Atty. Gen., for appellee.

TYSON, Judge.

James W. Johnston was indicted for the capital murder of one Mildred Hart in violation of § 13A-5-40(a)(8), Code of Alabama 1975. The jury found the appellant guilty as charged in the indictment and after a hearing on aggravating and mitigating circumstances he was sentenced to life imprisonment in the penitentiary without the benefit of parole.

This case arose out of a homicide which occurred on May 15, 1982, in Andalusia, Alabama. The morning of May 15, Mrs. Hart had been to the grocery store and to visit a friend, Mary Braxton, before returning home. The record shows that Mrs. Hart left Mary Braxton's home at sometime around eleven o'clock. The record shows that as Mrs. Hart was entering her home to unload her groceries she was attacked. The perpetrators of the crime tied electrical cord around her wrists and ankles, tied her to the corner posts of her bed, and raped her. She subsequently suffered death by ligature strangulation. Mrs. Hart was carried from her bedroom to the bathroom and placed face down in a bathtub half-full of water. Dr. Thomas Gilchrist of the Alabama Department of Forensic Sciences established the time of death to be within four hours either before or after twelve noon on May 15, 1982.

Early Sunday morning, May 16, 1982, Mary Braxton became worried about Mrs. Hart since she had not heard from her that morning. She testified that they made a regular practice of calling one another every morning to make sure everything was all right. She telephoned Mrs. Hart several times and there was no answer. She then telephoned a neighbor of Mrs. Hart and asked the neighbor to meet her at Mrs. Hart's home. As the two women were walking through the garage of the Hart residence they noticed a bag of groceries in Mrs. Hart's car. They called for Mrs. Hart, then when they did not get a response opened the door of the home and stepped into the kitchen. Upon entering they saw groceries littering the floor and noticed a broken window in the kitchen. They immediately left the home and called the police.

Due to an error in the trial of the case, all issues of error except the following have been pretermitted from discussion.

I

The appellant contends that three pre-arrest statements made by him to police officers were improperly admitted at trial for consideration by the jury due to several reasons.

(A)

The appellant first contends that these statements were made at a time when the appellant was in unlawful custody and thus they are inadmissible. The record shows that on the afternoon of May 16, 1982, the day the murder was discovered, Investigator Treadaway observed the appellant make approximately eight trips past the Hart residence while the investigation was in progress, several times venturing inside an area roped off for police personnel only. Treadaway talked to the appellant at one point and the appellant stated that he had not seen anyone strange in the neighborhood. Later the same afternoon Treadaway went to the boarding house where appellant lived to talk with the appellant. When the appellant appeared, Treadaway asked him if he could talk with him, and at that point the appellant immediately and spontaneously said that he did not rape the woman, he did not kill her, and he did not drag her to another room. (R. 167, 392, 402) At this point the appellant was not in custody, under arrest, nor restrained of his freedom in any way. (R. 166) The appellant was read his rights at this point, which he stated he understood, and agreed to go downtown for fingerprinting after being cautioned that he did not have to go. (R. 168)

The appellant made a second statement that he did not rape that woman and he did not kill her (R. 402) on the way to the police station. This statement was also spontaneous, voluntary, and not prompted by interrogation. (R. 393)

The appellant made a third statement while being fingerprinted. This statement was also spontaneous, voluntary, and not prompted by any interrogation. The appellant stated that he did not rape the woman, did not kill her, and did not drag her to the closet. (R. 402)

In order to deem a pre-arrest statement inadmissible we must determine whether the challenged statement was made pursuant to a custodial interrogation or custodial setting. A custodial interrogation has been defined as questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). The procedural safeguards outlined in Miranda do not apply to "traditional investigatory functions (such) as general on-the-scene questioning." Hall v. State, 399 So.2d 348 (Ala.Cr.App.1981). The facts of each case must be examined in order to determine whether the defendant was questioned merely as part of a general investigation or was subjected to a custodial interrogation. See Cork v. State, 433 So.2d 959 (Ala.Cr.App.1983); Hall, supra. Moreover, a voluntary, spontaneous statement made by a defendant to police officers, before any questions have been asked, is admissible against the defendant even though he has not been given his Miranda warnings. Jelks v. State, 411 So.2d 844 (Ala.Cr.App.1981); Ervin v. State, 399 So.2d 894 (Ala.Cr.App.), cert. denied, 399 So.2d 899 (Ala.1981); Terry v. State, 397 So.2d 217 (Ala.Cr.App.), cert. denied, 397 So.2d 223 (Ala.1981).

In the present case the appellant was not subject to any interrogation by law enforcement personnel. He voluntarily agreed to go to the police station after being cautioned that he did not have to go. He voluntarily and spontaneously made the statements. He was read his Miranda warnings which he stated he understood. Furthermore, after having made the three statements, none of which were prompted by police questioning, he was taken back to his place of residence. After reviewing the totality of the circumstances involved in this case, we find no element of coercion or custody present. Therefore, the statements were properly admitted by the trial court.

(B)

The appellant also contends that these statements should not have been admitted due to the appellant's defective mental condition.

The mental subnormality of a defendant does not in and of itself render a statement involuntary. Shorts v. State, 412 So.2d 830 (Ala.Cr.App.1981); Ellis v. State, 398 So.2d 402 (Ala.Cr.App.1981) and cases cited therein. The totality of the circumstances under which the statement of the appellant was given clearly shows that it was voluntarily given after a knowing and voluntary waiver of rights despite the fact that the appellant had a full scale I.Q. of sixty-seven and was classified as borderline mentally retarded. See Jackson v. State, 375 So.2d 1271 (Ala.Cr.App.), cert. denied, 375 So.2d 1274 (Ala.1979); Rhine v. State, 360 So.2d 1056 (Ala.Cr.App.), cert. denied, 360 So.2d 1060 (Ala.1978); Twymon v. State, 358 So.2d 1072 (Ala.Cr.App.1978). There was no interrogation of the appellant whatsoever in this case. His statements were purely spontaneous and voluntary, which distinguishes this case from others in which this court has held statements to be inadmissible due to mental defects. See Hines v. State, 384 So.2d 1171 (Ala.Cr.App.), cert. denied, 384 So.2d 1184 (Ala.1980); Garrett v. State, 369 So.2d 833 (Ala.1979). Moreover, this court has held statements to have been voluntarily given after a knowing waiver of rights in other cases in which the defendant had a much lower I.Q. than in the present case. See Shorts, supra; Brown v. State, 393 So.2d 513 (Ala.Cr.App.1981).

II

The appellant argues that the arrest warrant was insufficient as being conclusory and therefore his subsequent arrest was invalid. In connection with this argument the appellant contends that a statement made by the appellant subsequent to his arrest was not admissible.

(A)

An affidavit which is conclusory on its face and an arrest pursuant to such warrant will be deemed invalid. However, this court has held that in such instances the affidavit may be cured by oral testimony of the issuing magistrate at trial. The testimony should be such that the magistrate testifies that the officer to whom the warrant was issued recited sufficient reason for the issuance of the warrant. Malone v. State, 51 Ala.App. 19, 282 So.2d 367 (Ala.Cr.App.), cert. quashed, 282 So.2d 371 (Ala.1973); Morrison v. State, 398 So.2d 730 (Ala.Cr.App.1979), reversed on other grounds, 398 So.2d 751 (Ala.1981).

In this case Eleanor Rowell, the issuing clerk, was called to the stand to testify and although she stated that she did not recall if Officer Treadaway recited any independent facts sufficient to establish probable cause for arrest, the trial judge ruled that such cause was presented through testimony. We agree with the trial judge on this matter. There was sufficient evidence of probable cause presented to justify the issuance of the arrest warrant.

(B)

Moreover, in this case there was sufficient probable cause to arrest the appellant without a warrant pursuant to § 15-10-3(3), Code of Alabama 1975. This section states that an officer may arrest without a warrant when a felony has been committed and he has reasonable cause to believe that the suspect committed the act.

In this case Officer Treadaway knew of the statements made by the appellant on May 16; he had in his knowledge that Mrs. Hart had been harassed by the appellant in the recent past; he saw the appellant make more than eight...