A.M. v. State

• Decision Date: 16 April 1993
• Docket Number: CR-92-246
• Citation: 623 So.2d 421
• Parties: A.M. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 421

623 So.2d 421

A.M. v. STATE.

CR-92-246.

Court of Criminal Appeals of Alabama.

April 16, 1993.

As Corrected on Denial of Rehearing

May 28, 1993.

Certiorari Denied July 30, 1993

Alabama Supreme Court 1921344.

Joe W. Morgan, Jr., Birmingham, for appellant.

James H. Evans, Atty. Gen., and Gilda Williams, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, A.M., a juvenile, was charged in three delinquency petitions with receiving stolen property in the second degree, in violation of § 13A-8-18, Code of Alabama 1975; carrying a pistol on premises not his own, in violation of § 13A-11-52, Code of Alabama 1975; and first degree burglary, in violation of § 13A-7-5, Code of Alabama 1975. The state filed a petition to transfer the appellant's three cases to the Circuit Court for Jefferson County so that the appellant could stand trial as an adult. The court granted the state's petition. The current appeal is from the court's transfer order.

The charges against the appellant stem from two separate fact situations. The evidence presented at the transfer hearing concerning the charge of first degree burglary tended to show that on June 29, 1992, Detective David Smith, of the Birmingham Police Department, was called to 544 Francis Place in the West End area in response to a burglary-in-progress call reported by Larry Underwood. When Smith reached the area, he saw the appellant and another black male run across the street in front of his vehicle. The youths ran onto the appellant's front porch and sat down. Smith then turned his attention in the direction from which the youths had run. He spotted two large stereo speakers on the ground next to an abandoned house. When he looked back to the porch where the appellant and the other youth had sat down, they were gone.

Smith then called Larry Underwood, who came to the scene and identified the stereo speakers as his. The speakers were fingerprinted at the scene by police technicians. The appellant's fingerprints were found on the speakers.

At the house from which the speakers had been taken, the burglar bars had been pried off a back window and a door. After searching the house, Underwood realized that his RG .38 caliber revolver was also missing.

On July 7, 1992, Detective Smith questioned the appellant about the missing revolver at the Jefferson County Youth Detention Facility, where the appellant was being held in connection with the receiving stolen property and burglary charges. Smith's testimony indicated that during that interview, the appellant confessed his involvement in the burglary at the Underwood residence and acknowledged the fact that the speakers and the pistol had been stolen.

The appellant testified that he was not in the West End section of Birmingham on June 29, 1992, and he denied running in front of Detective Smith's car. The appellant also testified that his fingerprints were found on the stereo speakers only because he had touched them on an earlier occasion when he was in Underwood's house.

The series of events that led to the receiving stolen property charge and the weapons charge occurred on July 6, 1992. On this date, Roderick Sigler reported that someone had broken into his house. The stolen items included two gold necklaces, a diamond ring, a gold watch, a coin ring, two beeper/pagers, a pair of gold suede shoes, and two baseball caps. He valued the hats at $10 each, the gold necklaces at $220, and one of the beeper/pagers at $300. Later on that same day, Sigler saw the appellant and another black youth walking down the street. They were wearing the stolen baseball caps. Sigler drove up next to them and began to talk to the youths. Sigler noticed that the appellant also was carrying one of the stolen beeper/pagers.

After his conversation with the youths, Sigler telephoned the police. Detective Smith arrived within 20 minutes and arrested the appellant outside of the Krispy Kreme doughnut shop in the 2200 block of Bessemer Road. During the arrest, Smith recovered one of the gold necklaces, along with one of the beeper/pagers, and a baseball cap. Smith also recovered a .38 caliber revolver, which the appellant had tucked in the waistband of his pants. The record indicates that this was the same revolver reported stolen from Larry Underwood on June 29, 1992. Smith testified that the appellant did not have a license to carry a concealed weapon. The appellant's companion was wearing the other baseball cap, along with the coin ring, and the other necklace stolen from Sigler's house.

The appellant testified that he and his companion bought the hats and the jewelry from two people on Fulton Avenue approximately two hours before his arrest. He stated that he and his companion each paid $20 for the hats and the jewelry. He further testified that he had no idea that the hats and the jewelry were stolen.

I

The appellant first contends that the trial court committed reversible error in denying his motion to suppress his extra-judicial statements concerning his involvement in the burglary. Specifically, he argues that, during his interview with Smith, he requested that his attorney be present, but Smith denied his request and continued to question him.

At the suppression hearing, before the transfer hearing, Detective Smith and the appellant testified. Smith testified that, prior to questioning the appellant, he read the appellant his MIRANDA ¹ and juvenile rights, according to Rule 11(A), A.R.Juv.P., and that the appellant signed a waiver of rights form. Smith stated that the appellant appeared nervous during the interview, but that he appeared to understand his rights. He further stated that no one made any promises or threats to the appellant before taking his statement, and no one told the appellant that it would be either better or worse for him if he gave a statement. Further, Smith testified that the appellant told him that he did not have an attorney, and that he did not wish to speak to either an attorney or his parents.

Smith testified that the appellant then confessed his participation in the burglary. Smith said that the appellant first began to write a statement, but, because he was having difficulty with spelling, the appellant gave an oral confession, and Smith wrote down what the appellant said. The appellant told Smith that he did not go in Underwood's house and that he was merely a lookout at the time of the burglary. Smith stated that the appellant also told him that he later received the stolen pistol from one of his companions.

The appellant testified, during the suppression hearing, that he was read his rights, that he understood that he could request the presence of both an attorney and his parents, and that he had signed the waiver of rights form. He testified, however, that he had given Smith the name of his attorney, and had told Smith that he wished to see him. He also testified that Smith told him that it would be easier on him if he would talk to Smith.

The general rule is that " '[e]xtrajudicial confessions are prima facie involuntary and inadmissible, and the burden is on the State to prove that the confession was made voluntarily.' " Ex parte Weeks, 531 So.2d 643, 644 (Ala.1988), quoting Ex parte Callahan, 471 So.2d 463, 464 (Ala.1985). "Before an accused's confession can be received into evidence, the state must show that the statement was voluntary, that the accused was read his Miranda rights, and that he waived them." Franklin v. State, 621 So.2d 364 (Ala.Cr.App.1992). See also Whitlow v. State, 509 So.2d 252 (Ala.Cr.App.1987). However, to receive a confession into evidence, "[t]he trial court need only be convinced from a preponderance of the evidence to find a confession to have been voluntarily made." Jackson v. State, 562 So.2d 1373 (Ala.Cr.App.1990). See also Ex parte McCary, 528 So.2d 1133 (Ala.1988).

The trial court found that the appellant's statement was voluntary. " 'A finding of the trial court as to the voluntariness of a confession, following a hearing outside the presence of the jury, will not be disturbed on appeal unless contrary to the great weight of the evidence and manifestly wrong.' " Griffin v. State, 500 So.2d 83, 87 (Ala.Cr.App.1986), quoting Rush v. State, 397 So.2d 195, 197 (Ala.Cr.App.), writ denied, 397 So.2d 197 (Ala.1981). See also Johnson v. State, 611 So.2d 506 (Ala.Cr.App.1992).

The appellant and Detective Smith presented conflicting testimony at the suppression hearing. The trial court, sitting as the trier of fact, chose to believe Smith. We find that there was ample evidence presented from which the trial court could determine, by a preponderance of the evidence, that Smith had read the appellant his juvenile rights, that the appellant had waived his rights, and that he then gave a voluntary confession.

The appellant also argues that he was coerced by Detective Smith into making a confession. "The question of undue influence in obtaining admissions or confessions is determined by an examination of all attendant circumstances, with the inquiry focusing on whether the accused's free will and rational intellect were overborne at the time of his confession." Siebert v. State, 555 So.2d 772, 776 (Ala.Cr.App.), aff'd, 555 So.2d 780 (1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990). See also Hubbard v. State, 500 So.2d 1204, 1220 (Ala.Cr.App.), aff'd, 500 So.2d 1231 (Ala.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987).

The trial court found Detective Smith's testimony believable and the appellant's testimony unbelievable. The trial court's denial of the appellant's motion to suppress was not error. The statements made by the appellant were correctly received into evidence.

II

The appellant next contends that there was not sufficient probable cause to show that he committed the offense of receiving stolen property in the second degree.

Section 13A-8-16(a), Code of Alabama 1975, states:

"(a) A person...