Lee v. State

• Decision Date: 29 February 1972
• Docket Number: 1 Div. 87,1 Div. 88
• Citation: 258 So.2d 743,47 Ala.App. 548
• Parties: Charles A. LEE, III v. STATE. ,
• Court: Alabama Court of Criminal Appeals

Page 743

258 So.2d 743

47 Ala.App. 548

Charles A. LEE, III v. STATE.

1 Div. 87, 1 Div. 88.

Court of Criminal Appeals of Alabama.

Feb. 29, 1972.

Peter J. Palughi, Mobile, for appellant.

William J. Baxley, Atty. Gen., and Joseph G. L. Marston, III, Asst. Atty. Gen., for the State.

CATES, Judge.

Indictments for two separate murders: judgments of guilty of murder in the first degree: both sentences, electrocution. We reverse.

I

According to the tendencies of the State's evidence, borne out mostly by confessions made by Lee, he encountered a trysting couple in the back seat of a Corvair on a May night. The place was an unpaved road on Dauphin Island.

If believed by the jury to the required degree (as the verdicts say it was) Lee killed the young man by stabbing him. Then Lee bound the girl's hands, put her in the trunk of his car and took her apparently away from the island. Somewhere near State Highway 188 he stabbed her and left her nude body about sixty feet from the paved road.

II

We adjure against the expression 'assignment of error' in a criminal brief because it might mislead members of the bar into taking the unnecessary step of making formal assignments of error. See Code 1940, T. 15, § 389.

Originally the writer of this opinion grumbled cholerically at the intricateness of the briefs. Counsel's duty to the client overrides a sixty two year old judge's irascibility. Forsan paene judici satis poena quod Deum habet ultorem.

III

Appellant says that the jury separated. The record (74--75) bears out this contention. The State made no effort to show that some of the jurors who were not in the custody of the sworn bailiff had not talked or mingled with other persons. No mention is made of an agreement for the jury to separate or of any local or special law permitting such temporary dispersal. ¹

We have three well-settled rules: First, during the trial of a felony ² the jury is to be kept together; Second, if the jury does separate, that fact is, prima facie, error to reversal; and Third, to overcome this presumption of error, the State has the onus of establishing that the separated juror or jurors were not subject to influence or contacts which Might have swayed them in reaching the verdict.

We use 'might' to reflect the test of vitiating influence laid down in Roan v. State, 225 Ala. 428, 143 So. 454(26), i.e. 'not that it did influence a member of the jury to act without the evidence, but that it might have unlawfully influenced that juror and others * * *.' See Oliver v. State, 232 Ala. 5, 166 So. 615.

In Mitchell v. State, 244 Ala. 503, 14 So.2d 132(3), Bouldin, J., speaks of these rules as:

'* * * safeguards against the hazards of outside contacts, which may, with no fault of the juror, so enter into his thinking as to influence his verdict unawares.'

See also Tidwell v. State, 37 Ala.App. 228, 66 So.2d 845(5), (6).

In view of Tidwell, supra; Wright v. State, 38 Ala.App. 64, 79 So.2d 66, 70; Christison v. State, 39 Ala.App. 175, 96 So.2d 701; Golden v. State, 39 Ala.App. 361, 103 So.2d 52; and Smith v. State, 39 Ala.App. 501, 105 So.2d 662, we are impelled to reverse the judgment below. If Supreme Court Rule 45 were couched in terms so that we could weigh the evidence as though the jury separation had not occurred, our conclusion might be otherwise. However, the 'no other reasonable jury' test is foreclosed by our Supreme Court in Rule 45.

Hence, the court below should have granted the appellant's motion for a mistrial.

IV

The murders occurred in the early morning of Wednesday, May 28, 1969. Lee was arrested presumably on a non support charge sometime about 1 or 2 A.M. of Saturday, May 31.

On the following Monday, June 2, detectives in the Sheriff's office started interrogating him with respect to the murders. At that point he was given the Miranda warnings and signed at 9:25 A.M. a written waiver subjoined to a statement entitled 'YOUR RIGHTS.' (R. 108).

The interrogation was conducted in relays, i.e. Detectives Dees and Driggers began, then State Investigator Webber entered the questioning and on Tuesday a Prichard policeman, Chuck Wilkerson, also interviewed Lee on two occasions. In the latter interview Lee made inculpatory admissions and then later Tuesday night made a more complete confession of both crimes.

Each successive questioner asked Lee if he had had his rights explained to him and in each instance Lee affirmed that he had been apprised and that he waived having counsel.

First, appellant argues that his confession was improperly induced: (1) by an alleged statement by a policeman that the appellant did 'not face the electric chair as a penalty'; and (2) by a claimed statement by a detective that he, the detective, would see that appellant would get help in the form of mental diagnosis or therapy or possibly both.

In Maull v. State, 95 Ala. 1, 11 So. 218, we find:

* * * 'The testimony of the witness by whom the declarations were proven is as follows: 'I am sheriff of Lowndes county. A few days after defendant was put in jail I received a message from him to come to the jail; he wanted to see me. Soon afterwards I went to the jail, saw defendant, and asked him what he wanted with me. He replied he wanted to tell me about the killing of Mr. Maull. I asked him if he knew about the killing of Mr. Maull. He replied, 'Yes, sir, I do;' and added, 'I have sent for you to talk with you about my case.' I then told him to go ahead, and tell me all about his case. He asked me if it would be the best for him to tell the truth about it. I replied that it was always best for him or any one else to tell the truth about anything. He then said: 'I and this man (referring to another person in jail) have been talking about our cases, and I have sent for you to tell you about it.' I then said, 'If you are going to tell the straight truth, I will listen to it and want to hear it, and if you are not going to tell the truth I don't want to hear it.' He hesitated two or three seconds, and I said to him to go ahead and tell me 'all you know about the case. '' The declarations of defendant testified to by the witness were then made.

'The principle upon which these declarations were admitted cannot be distinguished from that applied to the facts in the case of Dotson v. State, 88 Ala. 210, 7 So. 259; Dodson v. State, 86 Ala. 60, 5 So. 485; Aaron v. State, 37 Ala. 106; Hornsby v. State, 94 Ala. 55, 58, 10 So. 522. In these cases the confessions of the defendant were held to be voluntary and admissible.'

In brief, p. 118, appellant quotes Detective Driggers's urging Lee to tell 'the truth about what happened that night on Dauphin Island * * *.' To this was coupled Driggers's account of Lee's asking him if he could get help. Driggers apparently told Lee 'that he will If he was guilty of this crime * * *.' Italics added.

As expressed by Stone, J., in Aaron v. State, 37 Ala. 106 at 115, '* * * to suppose that the prisoner was influenced by the declaration to make the confession, is to concede his guilt; for, in no other contingency, was he advised to confess.'

Electrocution, of course, provides an ultimate electric shock treatment. Yet we scarcely think that Driggers's prediction of 'help' could be reasonably understood to embrace death as the release of woe.

As to the prospect of mental treatment in the penitentiary we are not advised by this record. Nor do we think it is a matter for judicial notice or knowledge.

More likely to us is the implantation of the suggested notion of pleading not guilty by reason of insanity. However, on the record before us the notion was coupled to the condition 'if he was guilty.' See Aaron, supra.

The other statement was, 'I told him I didn't think he had to worry about the electric chair.' This encapsulates not only Driggers's opinion, but also is implicit as to the possibility of electrocution even while rejecting the thought. We think it is common knowledge that a conviction of first degree murder in Alabama carries the alternative punishment of electrocution.

This opinion by the detective may have falsely removed a fear in Lee's mind. However, at R. 353 Driggers volunteered that his statement about no fear of the electric chair was 'absolutely right, we don't have one here.' Also he testified that Lee 'inferred that I was going to put him in it * * *.' Certainly no effort was made to emulate the inducement employed in Reeves v. State, 260 Ala. 66, 68 So.2d 14, rev'd 348 U.S. 891, 75 S.Ct. 214, 99 L.Ed. 700. The trial judge saw Driggers while he testified.

At the close of the voir dire hearing to ascertain the voluntariness of the confession we find a confusing record which appears as follows:

'THE COURT: Court will be in recess for ten minutes. Be ready for the Jury Mr. Palughi.

'MR. PALUGHI: Your Honor, yes sir, we're not pleading insanity.

'THE COURT: I understand you're not pleading insanity. The nature of the testimony they gave. I'm going to exclude their testimony and yours and the police record, your effort to go to the jail at ten thirty at night, I don't think they would be required to admit you.

'MR. PETER PALUGHI: But as to the situation of the psychiatrist, we've got a--

'THE COURT: I'm not going to admit their testimony, I don't think it's proper. I sustain the objection and exclude yours, and the police records.

'MR. PETER PALUGHI: You not going to give me a chance to argue it.

'THE COURT: Not before me. You can argue it before the Supreme Court if it--

'MR. DELANO PALUGHI: Let the record show that His Honor refused--

'THE COURT: No, let the record show that I heard this testimony that has been presented to the Court and I'll give you an opportunity to argue as long as you want to. Tell Mr. Brutkiewicz to come back in.

'(At this time argument was had on constitutional rights, by Mr. palughi).

'THE COURT: Mr. Palughi, is this going to the question of whether or not I admit the confession?

'MR. PALUGHI: Yes sir, this goes to the question...