Lloyd v. State
| Decision Date | 04 November 1969 |
| Docket Number | 6 Div. 64 |
| Parties | Leander LLOYD v. STATE. |
| Court | Alabama Court of Criminal Appeals |
David P. Rogers, Jr., Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State.
This is an appeal from a conviction of murder in the second degree; sentence 75 years in the penitentiary.
The tendencies of the state's evidence were that the defendant participated with others in the killing of one Reginald Hawthorne by stabbing him with a knife. The only eye witnesses who could identify the defendant were accomplices.
The prosecution, presumably in order to overcome the strictures of Code 1940, T. 15, § 307, proved an in-custody confession to overcome the need for corroboration.
The only question which arises out of this record comes from the form of the so-called Miranda warnings 1 given before the defendant made his inculpatory statement. We extract the pertinent questions from the testimony of Detective Frank T. Horn on voir dire with the jury withdrawn:
'Before the defendant made a statement, did you all tell the defendant he had a constitutional right to remain silent and he didn't have to say anything at all before he made the statement?
'Did you, or Detective Wallace, or anybody else in your presence, tell the defendant at that time and on that occasion, before he made a statement, that anything he said would be used against him in a court of law?
'Did Detective Wallace, in your presence, advise the defendant he had a right to have his lawyer present before he made any statement or answered any questions?
'Did you, or anybody else in your presence, tell the defendant at that time, before he made a statement, that if he couldn't afford a lawyer the Court would appoint him a lawyer And to wait until that time before he answered any questions?
'Did you, or Detective Wallace, or anyone else in your presence, or to your knowledge, promise the defendant anything if he made a statement?
'Did you, or Detective Wallace, or anybody else in your presence, or to your knowledge, offer the defendant any inducement whatever to make a statement?
'At that time and on that occasion, did you, or Detective Wallace, or anybody else in your presence or hearing, or to your knowledge, threaten the defendant or coerce him in order to get him to make a statement?
'Did you, or anybody else in your presence, or to your knowledge, tell the defendant it would be better for him or worse for him in any way if he did or did not make a statement?
'After you advised the defendant of his constitutional rights, did he then talk to you?' (Italics supplied)
Then the transcript of testimony shows the following:
In his brief, counsel for appellant contends that the instant record fails to show an effective affirmative waiver of the socalled Miranda rights. In particular, it is argued that answers of Detective Horn to the question quoted above, viz. 'he said he understood the points as had been explained and he wanted to make a statement,' are insufficient.
The brief says:
We have italicized above the questions which related to lack of need of an incustody defendant to answer any questions until he has consulted with a lawyer. We have set out, in some detail, the trial judge's question which went to the heart of the need, i.e., whether or not the defendant made an affirmative waiver after stating that he understood his rights.
We believe that the foregoing quoted matter, prima facie, shows a waiver made after an explanation capable of being understood by a reasonable man.
Under Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, it was open to the defendant to take the witness stand on voir dire to go into the details of the circumstances in which the State claims he made his voluntary confession.
The defendant did not do this--rather, after the State rested, he took the stand in his own behalf and went into full details of the alleged murder. The gist of his story was that he was along with the others but that he attempted to restrain them rather than to aid them.
Nowhere did he say anything about his statement to the police officers.
We conclude, not only were the warnings adequate, but also that the State established that there was an intelligent and knowing waiver of the rights.
In this connection, we have carefully reviewed the instant form of waiver with that which lead to reversal in Square v. State, 283 Ala. 548, 219 So.2d. 377. There we find:
'Defendant says the so-called warning is defective in that defendant is not advised that the state will provide a lawyer to represent and advise defendant and to be present at and prior to the questioning if defendant desires a lawyer at that time. 'Defendant's point is well taken. The warning read to defendant not only does not say to defendant that the state will provide a lawyer for him prior to any questioning but does state:
It is to be noted that the fourth listed 'right' given in the below quoted 'FBI, Your Rights,' taken from Gordon v. State, Miss., 222 So.2d 141, differs from that used in Alabama:
'* * * The FBI agent testified that before she was asked any questions he warned the appellant of her constitutional rights by reading from the FBI form entitled 'Your Rights', which is set out as follows:
'Before we ask you any questions, you must understand your rights.
'You have the right to remain silent.
'Anything you say can be used against you in court:
'You have the right to talk to a lawyer for advice before we ask you any questions and to have him with you during questioning.
'If you cannot afford a lawyer, one will be appointed for you before any questioning, if you wish.
Thus, since Congress has refused to lift the burden of Miranda from State officers, and since our Legislature, except under Code 1940, T. 15, § 260--266, has seen fit not to supply counsel to paupers until after indictment or other formal charge, Code 1940, T. 15, § 318 (capital cases); Act 526, September 16, 1963 (serious offenses), court appointment of counsel cannot be made until the prisoner is legally held to answer a charge 'in the circuit court, or court of like jurisdiction.' Code 1940, T. 15, § 318(1). Contrariwise, United States' Commissioners before whom federal prisoners must be taken have fuller powers.
The statement 'that he had a right to wait until That time before * * * mak(ing) any statement' (...
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Atchley v. State
......denied, Ala., 351 So.2d 665 (1977): . "While all extra-judicial confessions (or, for that matter, statements) are prima facie involuntary and can be rendered admissible only by showing that an 'express and affirmative' waiver was given, there is no set pattern or manner for a waiver. Lloyd v. State, 45 Ala.App. 178, 227 So.2d 809 (1969). While a waiver will not be presumed simply from the silence of the accused after the warnings are given or simply from the fact that a confession was obtained, where the totality of the circumstances indicate that the confession was voluntary, a ......
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Jackson v. State
......State, 417 So.2d 241 (Ala.Crim.App.1982); Dolvin v. State, 391 So.2d 666 (Ala.Crim.App.1979), aff'd, 391 So.2d 677 (Ala.1980). " 'Any clear manifestation of a desire to waive is sufficient. The test is the showing of a knowing intent, not the utterance of a shibboleth.' " Lloyd v. State, 45 Ala.App. 178, 184, 227 So.2d 809, 814 (1969) (quoted with approval in Rogers v. State, 417 So.2d at 248)). The trial judge need only be convinced from a preponderance of the evidence to find a confession to have been voluntarily made. Harris v. State, 420 So.2d at 814. The ......
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Eggers v. State
...... Page 905 . rendered admissible only by a showing that `an express and affirmative' waiver was given, there is no set pattern or manner for a waiver. Sullivan v. State, 351 So.2d 659 (Ala.Cr.App.), cert. denied, 351 So.2d 665 (Ala.1977); Lloyd v. State, 45 Ala.App. 178, 227 So.2d 809 (1969). A waiver will not be presumed simply from the silence of the accused after the warnings are given or simply from the fact that a confession or admission was obtained. . "Where, however, the totality of the circumstances indicates ......
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Eggers v. State, No. CR-02-0170 (AL 10/1/2004)
...... Sullivan v. State , 351 So. 2d 659 (Ala. Cr. App.), cert. denied , 351 So. 2d 665 (Ala. 1977); Lloyd v. State , 45 Ala. App. 178, 227 So. 2d 809 (1969). A waiver will not be presumed simply from the silence of the accused after the warnings are given or simply from the fact that a confession or admission was obtained. . "Where, however, the totality of the circumstances indicates ......