Lewis v. State

• Decision Date: 26 March 1976
• Citation: 329 So.2d 599,295 Ala. 350
• Parties: In re Winston LEWIS v. STATE of Alabama. Ex parte STATE of Alabama. SC 1528.
• Court: Alabama Supreme Court

Page 599

329 So.2d 599

295 Ala. 350

In re Winston LEWIS v. STATE of Alabama.

Ex parte STATE of Alabama.

SC 1528.

Supreme Court of Alabama.

March 26, 1976.

William J. Baxley, Atty. Gen., and Gary R. Maxwell, Asst. Atty. Gen., for the State.

No brief for the defendant.

BLOODWORTH, Justice.

This case comes to us by way of petition for writ of certiorari which we granted to review the decision of the Court of Criminal Appeals in 57 Ala.App. ---, 329 So.2d 596, 1 Div. 553.

We perceive the question presented to us by this case to be:

'Is it reversible error for a trial judge (who has already determined the admissibility of a confession or inculpatory statement en camera) to permit the statement to be presented to the jury, over defendant's objection, without first requiring the state to lay the 'Miranda' ¹ and 'voluntariness' predicates before the jury?'

We answer in the affirmative and affirm the Court of Criminal Appeals.

Our Alabama cases follow the 'Orthodox Rule' to the effect that the question as to the admissibility of a confession addresses itself to the judge and that the credibility and weight to be given a confession are matters exclusively for the jury. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Duncan v. State, 278 Ala. 145, 176 So.2d 840 (1965); Johnson v. State, 242 Ala. 278, 5 So.2d 632 (1941).

Our Alabama cases have long held:

'And after the confessions have been admitted, The jury may consider the circumstances under which the confessions were obtained, and the appliances by which they were elicited, including the situation and mutual relation of the parties, In exercising their exclusive prerogative of determining the Credibility of the evidence, or the Weight to which it is properly entitled in controlling the formation of the verdict. Redd v. State, 69 Ala. 255.' (Emphasis supplied.)

Johnson v. State, 242 Ala. at 282, 5 So.2d at 635.

Prior to Jackson v. Denno, supra, the Alabama practice was to offer the predicate as to voluntariness to the judge and jury at the same time. As Mr. Justice Lawson (the author of the opinion) comments in Duncan, it was rare to find a record in which a request was made for the judge to first hear the predicate en camera. 278 Ala. at 163, 176 So.2d at 857.

After Jackson v. Denno, this Court held in Duncan:

'We are clear to the conclusion that whenever a motion is made for the question of the voluntariness of the confession to be determined outside the presence of the jury, the motion should be granted. In such a hearing, the trial judge sitting alone should make a determination upon a proper record of the issue of voluntariness. . . . If the confession is held voluntary and admitted, the jury's consideration of that confession and surrounding circumstances shall proceed in accordance with the 'Orthodox' procedure, that is, The jury considers the voluntariness as affecting the weight or credibility of the confession.' (Emphasis supplied.)

278 Ala. at 165, 176 So.2d at 859.

This is exactly what is suggested by the U.S. Supreme Court in the opinion in Jackson v. Denno, supra, in Note 13:

'The question of the credibility of a confession, as distinguished from its admissibility, is submitted to the jury in jurisdictions following the orthodox Massachusetts, or New York procedure. Since the evidence surrounding the making of a confession bears on its credibity, such evidence is presented to the jury under the orthodox rule not on the issue of voluntariness or competency of the confession, but On the issue of its weight. Just as questions of admissibility of evidence are traditionally for the court, Questions of credibility, whether of a witness or a confession, Are for the jury. This is so because trial courts do not direct a verdict against the defendant on issues involving credibility. Nothing in this opinion, of course, touches upon these ordinary rules of evidence relating to impeachment.

'A finding that the confession is voluntary prior to admission no more affects the instructions on or the jury's view of the reliability of the confession than a finding in a preliminary hearing that evidence was not obtained by an illegal search affects the instructions on or the jury's view of the probativeness of this evidence.' (Emphasis supplied.)

378 U.S. at 386--87, 84 S.Ct. at 1786, 12 L.Ed.2d at 921.

Under the rationale of these decisions, how can the jury consider 'the voluntariness as affecting the weight or credibility of the confession' unless the state presents evidence as to the 'Miranda' and 'voluntariness' predicates to the jury? The answer seems to us to be self-evident, assuming, of course, that seasonable and proper objection is made by defendant, if such evidence is not presented by the state before a confession or inculpatory statement is offered. This, for the reason that defense counsel may decide for reasons of trial strategy it would not be desirable, from defendant's standpoint, to rehash this evidence before the jury. See Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408 (1965).

The Mississippi Supreme Court, in Rhone v. State, 254 So.2d 750 (Miss.1971), wrote that after the court (in an out-of-court hearing) had 'found that the confession was competent evidence It allowed the state, over the objection of the defendant, to introduce a confession into evidence without showing that the confession had been freely and voluntarily given. When the defendant sought by cross examination of the witness relative to the circumstances surrounding the giving of the confession, the court sustained objections by the state and refused to allow the defendant to fully show the circumstances surrounding the giving of the confession.' (Emphasis supplied.) Id. at 754.

The court then held, viz:

'. . . It was the opinion of the trial judge that since the court had held the confession was competent evidence, the only thing that defendant could show was that the confession was not true. In so holding the court was in error. It has long been the law of this state, that before a confession can be received in evidence, it must be shown to be competent in that it was freely and voluntarily given. This is a legal question to be determined by the court on a preliminary investigation out of the presence of the jury. If, after hearing all the testimony pertinent to the inquiry, the court is satisfied beyond a reasonable doubt that the confession was freely and voluntarily given, it becomes competent evidence. However, after a confession has been held by the court to be competent evidence either party has a right to introduce before the jury the same evidence which was submitted on the preliminary inquiry as well as any other evidence relative to the weight and credibility of the confession. The jury does not pass upon the competency of the confession, but the jury does pass upon the weight and credibility of the confession.'

Id. Although strictly speaking Rhone merely stands for the proposition that a defendant should be allowed to introduce evidence of 'involuntariness' before a confession is shown to the jury, we think it infers that the state should show the voluntariness to the jury. Any other conclusion misconceives the law and burden of proof. Under Alabama law, a confession is prima facie involuntary and inadmissible. The burden is on the state to rebut that presumption and show its 'voluntariness' and that the 'Miranda' predicate was laid in order to admit it. True, the trial judge makes a preliminary determination of admissibility but the jury is still left with its duty to consider 'voluntariness as affecting the weight or credibility of the confession.' Duncan, supra. To do that, it must hear at least a 'bare bones' voluntariness and Miranda predicate. To hold otherwise would shift the burden to the defendant to show these matters to the jury.

The Iowa Supreme Court in State v. Holland, 258 Iowa 206, 138 N.W.2d 86 (1965), stated what we conceive the correct rule to be:

'We note that After the trial court ruled the confessions were admissible and they were received in evidence before the jury, Testimony was again admitted as to their voluntary character. It was proper to do this, not to permit the jury again to pass upon their admissibility--that had been properly determined by the court--but As bearing upon the weight to be accorded them and the credibility of the witnesses who testified regarding the confessions. . . .

'Our approval of the procedure used here is in accord with the view of both the Wisconsin and Michigan courts in approving the so-called 'orthodox' over the 'Massachusetts' method of determining the question of voluntariness. . . . (Citations omitted.)' (Emphasis supplied.)

Id. at 214, 138 N.W.2d at 91.

We think that the dissent has misconceived the question. The issue to the jury is Not admissibility. That has already been determined by the judge en camera.

We believe that the dissent also misconceives the rule of law in our State respecting confessions. It is not, as the dissent suggests, 'At the defendant's insistance, (that) the State must first overcome the presumption against voluntariness en camera.' Our rule is that a confession is prima facie involuntary and inadmissible and its voluntariness must be shown by the state. There is no requirement that it must be 'At the defendant's insistance.'

Again, we believe that the dissent has misconceived the nature and purpose of defendant's objection to the confession when the inculpatory statement was offered and defendant's counsel stated that 'No proper predicate' was laid. The purpose of the objection was not, as the dissent suggests, 'to preserve for review the trial Court's ruling on admissibility.' That purpose had already been served by defendant's objections en camera. Defendant does not have to repeat the objection to preserve for review the question of admissibility. It is obvious that the reason for the objection was, as we...