Marlowe v. State

• Citation: 854 So.2d 1182
• Parties: John Steven MARLOWE, alias Steven Peavy v. STATE.
• Decision Date: 28 June 2002
• Court: Alabama Court of Criminal Appeals

854 So.2d 1182

John Steven MARLOWE, alias Steven Peavy v. STATE.

CR-00-2146.

Court of Criminal Appeals of Alabama.

June 28, 2002.

Rehearing Denied August 9, 2002.

Carol Mark Lowell, Monroeville, for appellant.

William H. Pryor, Jr., atty. gen., and Elizabeth Ray Butler, asst. atty. gen., for appellee.

PER CURIAM.

The appellant, John Steven Marlowe, alias Steven Peavy, was convicted of robbery in the first degree, a violation of § 13A-8-41, Ala.Code 1975. Marlowe was sentenced to life imprisonment in the penitentiary and was ordered to pay $50 to the Crime Victim's Compensation Fund and $5,287 in court costs. On May 30, 2001, Marlowe filed a motion for judgment of acquittal or, in the alternative, for a new trial, which the trial court denied. This appeal followed.

The evidence elicited at trial tended to establish the following. Around 3:00 p.m. on November 3, 2000, 75-year-old Nelvin Stacey arrived at his office at Colony Trailer Park. Stacey was the owner of the park. While collecting rent and making repairs, he saw a red automobile driving around the park. Later that day—around 6:00 p.m.—Stacey returned to his office. When he entered the office, he was struck in the head and chest, and he lost consciousness. As Stacey regained consciousness, he became aware that a masked man was attempting to take his wallet. Stacey struggled with the man—first inside, and then outside the office. Stacey again lost consciousness, and the man fled with several hundred dollars from Stacey's wallet. Two residents of the trailer park noticed the struggle, and attempted to come to Stacey's aid. As they approached, they saw the robber flee into a nearby wooded area before they arrived. One of the residents telephoned for an ambulance for Stacey. About that time, the two residents observed an older red sports car being driven from the woods. Stacey was treated at the hospital for a laceration to the head, and he remained in the hospital under observation for three days.

The Monroe County Sheriff's Department received an anonymous tip that John Steven Marlowe had committed the crime. Marlowe was brought in for questioning; he denied any knowledge of the crime, and he indicated that he was willing to take a lie-detector test. Two weeks later, Marlowe voluntarily took a polygraph test; at the conclusion of the polygraph test, he gave a statement confessing to the crime.

At trial, Marlowe moved to suppress the confession, and following a hearing the trial judge denied his motion. Marlowe was convicted; this appeal follows.

I.

On appeal, Marlowe argues that the trial court erroneously denied his motion to suppress his confession. Specifically, Marlowe contends that the trial court should have granted his motion to suppress because the police, according to Marlowe, had promised him leniency and had implied that the results of the polygraph test would be used as evidence against him in trial. We disagree.

"`The standard of review when there is conflicting evidence at a hearing on a motion to suppress evidence of a confession is whether the trial court's decision was "manifestly contrary to the great weight of the evidence." Ex parte Matthews, 601 So.2d 52, 54-55 (Ala.), cert. denied, 505 U.S. 1206, 112 S.Ct. 2996, 120 L.Ed.2d 872 (1992). We will not disturb the trial court's decision on the voluntariness of a confession unless it is clearly erroneous. Ex parte Youngblood, 656 So.2d 390, 392 (Ala.1995).'"

Richardson v. State, 819 So.2d 91, 98 (Ala. Crim.App.2001) (quoting Barnes v. State, 704 So.2d 487, 492 (Ala.Crim.App.1997)).

During the trial, the trial judge conducted a hearing on Marlowe's motion to suppress. At the hearing, Officer Terry Mason testified that he developed Marlowe as a suspect based on information he was given by witnesses and by an anonymous informant. Following a traffic stop, Marlowe was brought in for questioning; he denied any involvement in the crime; and he was released. Two weeks later, Marlowe voluntarily took a polygraph test administered by Agent Tommy Merritt of the Alabama Bureau of Investigation. Officer Mason re-interviewed Marlowe following the polygraph test. Officer Mason testified that he did not attempt to induce Marlowe to confess.

"[Prosecutor]: Did you promise him anything?

"[Officer Mason]: No, sir.

"[Prosecutor]: Did you offer a particular sentence he could receive if he gave a statement?

"[Officer Mason]: No, sir.

"[Prosecutor]: Did you tell him that he could get out on a certain bond if he gave you a statement?

"[Officer Mason]: No, sir.

"[Prosecutor]: Did you give him any inducement in any way to get him to give you a statement?

"[Officer Mason]: No, sir.

"[Prosecutor]: Any threat, any physical threat at all?

"[Officer Mason]: No, sir.

"[Prosecutor]: Did you apply any violence to him?

"[Officer Mason]: No, sir.

"[Prosecutor]: Did you threaten any violence?

"[Officer Mason]: No, sir.

"[Prosecutor]: Did you tell him that [it] would [be] better off for him to make a statement?

"[Officer Mason]: No, sir."

(R. 93-94.)

Officer Mason testified that he told Marlowe what the results of the polygraph test were and that he told Marlowe that the results were not admissible as evidence in court.

Officer Mason testified that he advised Marlowe of the rights he was waiving by signing the waiver-of-rights form, and that Marlowe signed the waiver and indicated that he understood those rights and that he understood that he was waiving them. Marlowe then gave the following statement, which Officer Mason wrote on the back of the waiver-of-rights form.

"On November 3rd around 4:30 p.m., I went to Colony Trailer Park in my Chrysler Laser [automobile], burgundy in color, and parked on the trail by the mailboxes, across from the office. I parked where I could come out forward. I had a pair of [camouflage] pants, gray hooded sweatshirt pulled over my head, boots black and gloves, batting. I walked in his office and sat in a chair by the door. The door was open and it was dark. I sat there thirty minutes before he, Mr. Stacey, came in. I had worked with him before and knew that he would come to the office. He drove up in his truck and got out. He walked up to the door. I hit him in the chest. He grabbed me and I grabbed him back. We fell by the door. I fell on top of him. I grabbed the billfold out of his pants pocket and as he was on the floor, I turned and walked away. He grabbed my shirt and I stepped off the steps backward, as I had a hold of him and we fell to the bottom of the steps. I rolled him over and I got up. Money fell out of the wallet. I picked it up off the ground and I left. I got in my car and went straight to the house. I got around $200.00 cash. I left and went to Fort Deposit, like I said the first time. I burned what I had the next day in Old Salem. I'm not going to show you. I give this statement of my own free will and no promises or threats have been made to me, no pressure or coercion had been used against me."

(R. 100-01.)¹

Marlowe testified at the suppression hearing that he was given the impression that the polygraph test results were admissible in court and that they would be used against him. He further testified that Officer Mason indicated that if he confessed, he might get a lighter sentence.

The trial court's ruling on a motion to suppress a confession is given great deference on appeal and will not be overturned unless that ruling is palpably contrary to the weight of the evidence. See, e.g., Taylor v. State, 808 So.2d 1148 (Ala. Crim.App.2000); D.M.M. v. State, 647 So.2d 57 (Ala.Crim.App.1994). Based on our review of the record, we cannot say that the trial court's denial of the motion to suppress was "manifestly contrary to the great weight of the evidence." Richardson v. State, 819 So.2d at 98. The trial judge did not err in denying Marlowe's motion to suppress.

II.

Marlowe argues in his brief to this Court that the trial court erroneously denied his motion for a judgment of acquittal and his motion for a new trial. At the conclusion of the State's case-in-chief, Marlowe made the following motion for a judgment of acquittal: "Your Honor, at this time I would like to make a Motion for Judgment of Acquittal." (R. 138.) At the close of the State's case, Marlowe also submitted a written motion for a judgment of acquittal. That motion specifically alleged: "The State has failed to prove that this Defendant caused `serious physical injury' to Nelvin Stacey as charged in the indictment." (C. 17.)² Marlowe, in his motion for a new trial, argued, in relevant part, that the State had failed to prove a prima facie case of first-degree robbery, and he specifically stated that the prosecution had failed to prove that Stacey suffered serious physical injury.

The Alabama Supreme Court addressed the appellate court's role in reviewing the sufficiency of the evidence in criminal cases in Ex parte Woodall, 730 So.2d 652 (Ala.1998):

"`In determining the sufficiency of the evidence to sustain a conviction, a reviewing court must accept as true all evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider all evidence in a light most favorable to the prosecution. Faircloth v. State, 471 So.2d 485 (Ala.Cr. App.1984),aff'd,471 So.2d 493 (Ala. 1985).' Powe v. State, 597 So.2d 721, 724 (Ala.1991). It is not the function of this Court to decide whether the evidence is believable beyond a reasonable doubt, Pennington v. State, 421 So.2d 1361 (Ala.Cr.App.1982); rather, the function of this Court is to determine whether there is legal evidence from which a rational finder of fact could have, by fair inference, found the defendant guilty beyond a reasonable doubt. Davis v. State, 598 So.2d 1054 (Ala.Cr. App.1992). Thus, `[t]he role of appellate courts is not to say what the facts are. [Their role] is to judge whether the evidence is legally sufficient to allow submission of an issue for decision [by] the jury.' Ex parte Bankston, 358

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