Kelly v. State, 60575

• Citation: 621 S.W.2d 176
• Decision Date: 24 June 1981
• Docket Number: No. 60575,No. 2,60575,2
• Parties: Arthur Lee KELLY, Jr., Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 176

621 S.W.2d 176

Arthur Lee KELLY, Jr., Appellant, v. The STATE of Texas, Appellee.

No. 60575.

Court of Criminal Appeals of Texas, Panel No. 2.

June 24, 1981.

Ronald W. Quillin, Fort Worth, for appellant.

Tim Curry, Dist. Atty. & William Kane, Howard Borg, Joe Drago & James J. Heinemann, Asst. Dist. Attys., Fort Worth, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and TOM G. DAVIS and CLINTON, JJ.

OPINION

ONION, Presiding Judge.

This is an appeal from a conviction for murder, in which the jury assessed appellant's punishment at ninety-nine (99) years' imprisonment.

Appellant contends that the trial court erred in overruling his motion to suppress his extrajudicial confession. Appellant admitted in a written statement the slaying of Portia Ann Jackson, who was employed for the evening of March 22, 1977, as a dancer at the Salt and Pepper Club in Fort Worth. Appellant stated that he and his brother Ricky Kelly returned to the club seeking revenge after a fracas with a bartender led to appellant's ejection. He admitted that they knocked on the back door of the club, and then each fired a shotgun at the deceased as she opened the door, striking her in the face.

Appellant specifically contends that the Fort Worth police violated the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), by questioning him in the absence of counsel while aware that he desired consultation with an attorney, and by continuing their questioning after appellant expressed a desire to remain silent. A chronological review of the evidence adduced at the hearing on his motion to suppress the confession will serve to put these contentions in perspective.

According to the State's evidence presented at that hearing, Fort Worth police officers procured a warrant on the basis of hearsay information implicating appellant in the murder, and arrested him on March 31, 1977. Appellant was warned of his constitutional rights to remain silent and to have an attorney present prior to and during any questioning, and indicated that he understood those rights. He was then taken before a magistrate who again advised him of his rights, had him sign an acknowledgment of receipt of that advice, and noted on the acknowledgment form that appellant had no questions or requests at that time.

After being booked into the city jail, appellant was first taken upstairs, apparently to police department offices, at 7:45 P.M. on March 31, 1977, to be interviewed by Detective Alvin Gene Meyer for 25 to 30 minutes. Meyer testified that he warned appellant of his rights to remain silent and to have an attorney present prior to and during questioning on this occasion and every subsequent time he talked to appellant, and that appellant indicted that he understood. He stated that appellant never requested to see an attorney and refused several offers of a telephone for use in calling one, and that appellant never stated that he did not wish to talk to Meyer, during this or any of their subsequent discussions. However, Meyer also testified that appellant "wasn't saying a whole lot about anything" during at least their first interview session.

Appellant was brought upstairs at 10:00 A.M. on the following day, April 1, 1977, to meet with his mother, pastor and aunt for approximately 40 minutes, and appellant prayed with the pastor. No questioning transpired. At 12:40 P.M., Meyer and Detective C. D. Timmons "checked him out" for questioning, but appellant was returned to the jail 27 minutes later without admitting participation in the murder.

Appellant was brought upstairs for the fourth and final time at 2:00 P.M. at the request of his brother, who was also in custody; however, Meyer talked to appellant for 25 to 30 minutes on this occasion, and Detective George Killough also spoke to him for 10 to 15 minutes during Meyer's temporary absence.

Appellant's mother arrived at 3:10 P.M., and she spoke to appellant and his brother for "quite some time." Appellant's mother made several unsuccessful attempts to contact an attorney during this period in the presence of appellant and Meyer, but Meyer made no effort to assist, apparently because "during this time, the discussion was between him and his brother and his mother." After she made the calls, Meyer testified, appellant said to his brother, "Let's go ahead and tell him about it."

Meyer then again warned appellant of his constitutional rights as set out on the "blue card" which he carried for that purpose, and appellant indicated that he understood. Meyer then proceeded to type appellant's oral statement as it was related to him. He typed it onto a form which commenced with a recitation of the constitutional rights of an accused, ¹ and also contained the following waiver of his constitutional rights: "Having been informed of these, my rights, and understanding same, I hereby freely voluntarily and knowingly waive these rights and not desiring a lawyer voluntarily choose to make the following statement."

Afterwards, appellant read the transcription of his statement, initialed the typographical corrections therein, and then signed the statement and waiver of his rights at about 4:30 P.M. in the presence of a disinterested witness, who also signed the one page document.

Appellant testified at the hearing on his motion to suppress that he was warned of his constitutional rights only by the magistrate before making his confession. He stated that he repeatedly told Meyer and Killough that he did not wish to talk to them, and that Meyer refused him permission to contact an attorney. Appellant also detailed various instances of physical abuse that Meyer and Timmons allegedly inflicted upon him, ² and stated that he confessed only because he was afraid of what the police would do to him.

Appellant presented testimony from Sammy Williams, who was also suspected of participation in the offense and who testified for the State in its case-in-chief, that he was present during a portion of appellant's interrogation, and heard Meyer refuse appellant's request for an attorney.

The trial court's written order overruling appellant's motion to suppress the confession, filed pursuant to Article 38.22, V.A.C.C.P., contains findings that appellant "has the mental capacity to understand the language that was spoken to him and at that particular time was alert and could relay to Det. A. G. Meyer his idea (sic) and his thought," that appellant was "warned, according to his own testimony, before the statement was given," and that appellant "knew his constitutional rights" and "waived his constitutional rights at the time and entered into making of this statement with Det. A. G. Meyer, after ________ had warned him under the Miranda theory of his constitutional rights." ³

The trial judge also made oral findings at the conclusion of the motion to suppress hearing that appellant's "constitutional rights have not been denied and he received due process all the way through ..."; and that he was "particularly impressed whenever I heard evidence that his family was there to see him twice prior to the execution of the statement."

It is well settled that at a hearing on the admissibility of a confession, the trial court is the trier of the facts and judge of the credibility of the witnesses and the weight to be given their testimony; he can accept or reject the testimony of witnesses, including a defendant, in determining the issues before him. White v. State, 591 S.W.2d 851 (Tex.Cr.App.1979); McKittrick v. State, 541 S.W.2d 177 (Tex.Cr.App.1976), and cases cited therein.

Much of appellant's and Williams' testimony was refuted by the State's witnesses, and under the foregoing authorities, we are foreclosed from tampering with the trial court's ruling on the basis of such evidence.

However, appellant also relies on testimony which was corroborated rather than refuted by the State's witnesses, in support of his claim that the trial court erred in finding appellant's constitutional rights under Miranda, supra, were fully observed. He points to Meyer's confirmation that the detective was aware of the fact that appellant's mother made at least two unsuccessful attempts to contact an attorney just before appellant decided to "go ahead and tell him about it."

In Miranda, supra, the Supreme Court of the United States, concerned with the coercive atmosphere of custodial interrogation, required that suspects be warned of their constitutional right to remain silent and their right to counsel as a prerequisite to the taking of an admissible self-inculpatory statement. The Court also stated:

"The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." 384 U.S. 444, 86 S.Ct. 1612.

In applying these rules to the situation presented by Meyer's testimony, we first observe that appellant neither personally advised Meyer of his desire to consult an attorney, nor personally attempted to contact one. We decline to equate an attempt by a member of the family of an accused to contact a lawyer, which is overheard by a police officer, with an indication by the accused that he desires consultation with counsel prior to any questioning. Appellant's mother may have acted on her own despite the indifference or even opposition of her son. No violation of Miranda supra, is shown.

Furthermore, the trial court found that appellant made a valid waiver of his constitutional rights at the time of the making of his statement, subsequent to the attempts of his mother to contact an attorney, and we are unable to say that finding was erroneous. The following discussion of the requirement of a knowing and intelligent waiver of the rights of an accused appears in North Carolina v. Butler, ...