McCall v. State

• Decision Date: 27 May 1986
• Docket Number: 1 Div. 895
• Citation: 501 So.2d 496
• Parties: Larry McCALL v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 496

501 So.2d 496

Larry McCALL v. STATE.

1 Div. 895.

Court of Criminal Appeals of Alabama.

May 27, 1986.

Rehearing Denied July 15, 1986.

Certiorari Denied Jan. 30, 1987

Alabama Supreme Court 85-1283.

Linda S. Perry, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Gerrilyn V. Grant and William D. Little, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

Larry McCall was convicted for the capital murder of Adam Lilly and sentenced to life imprisonment without parole. We are in full accord with the finding of the trial judge that "the killing of Adam Lilly was a pitiless and totally amoral act committed for the basest of human motives." Our review convinces us that McCall's conviction should be affirmed.

I

McCall contends that his statements to the police were taken in violation of his constitutional rights and should not have been admitted into evidence.

McCall was arrested on November 2, 1983. He made four statements to the Mobile police.

Initially, he told the police that he had an alibi and that he did not know anything about the murder. This volunteered statement was made by McCall after he had been advised of Miranda rights and while he was being transported to the police station for questioning.

McCall made a second statement upon being interrogated after his arrival at the police station. After again being advised of his Miranda rights by Mobile Police Detective John Boone, McCall initially invoked his right to counsel:

"Question [Sgt. Boone]: I got a tape player going right here to record everything that's said in this room.

"Answer [McCall]: Oh, I'll talk when my lawyer come. Whenever, you know.

"Q. All right. You don't want to make a statement' til your lawyer comes?

"A. That's the only time.

"Q. Well, I thought you said earlier you wanted me to help verify where you were--where you was when Adam was killed.

"A. Yeah, I told you that.

"Q. All right.

"A. Can't nobody do that but his brother and Harry. I told you from the jump [start].

"Q. Well that's what I want to--

"A. Yeah.

"Q. --try to find out about now, as to who to get and how to contact them and so forth, so we can--'cause we can prove guilt as well as innocence.

"A. Okay.

"Q. But I can't talk to you now, if you want your lawyer here. I can't talk to you. You--you want to talk about your lawyer--without your lawyer? You can, but if you tell me you don't want to talk, I got to quit talking to you.

"A. Uh huh.

"Q. Now, if you want to talk about Harry?

"A. Well, I going to tell you the same thing I'm going to tell my lawyer comes.

"Q. Well, do you want to tell me?

"A. Yeah. I'll tell you the same thing."

McCall then told Sergeant Boone that he had been with Harry Lilly, Adam Lilly's brother, that he did not know who killed Adam but that he had heard "street talk" and rumors that "it was three or four different guys,", naming Huey Broadus, Lija Williams, David Williams, and himself. This second statement was not introduced by the State at trial. McCall was then placed in the city jail in the same cell with David Vaughn, who had been arrested for robbery and was awaiting trial. McCall and Vaughn were longtime friends.

Sergeant Boone had talked to Vaughn about the Lilly murder on October 20, 1983, upon receiving information that Vaughn might have been involved. Boone testified that, upon his request, Vaughn stated that he was not involved, but that he might "possibly" be able to provide information about the murder in exchange for help on his bond and the bond for Willie Eugene Hardy, also awaiting trial on the robbery. Vaughn testified that it was Sergeant Boone's suggestion to get his bond reduced in exchange for information about Lilly's death.

Sergeant Boone also talked to Vaughn on October 27th and showed him the bonds which he had gotten reduced. Boone stated that Vaughn told him that McCall and Robert Seltzer were the ones that had killed Adam Lilly, and that McCall had admitted this fact to him. Vaughn refused the bonds stating that he wanted to remain in jail, apparently out of fear of retaliation for having given this information.

Both Vaughn and Sergeant Boone denied that Vaughn was acting as a law enforcement agent in procuring statements from McCall. There was no testimony that McCall and Vaughn had been placed in the same cell so that Vaughn could obtain information from McCall.

Vaughn testified that on the morning of November 3, 1983, McCall attempted to telephone the police and talk to Sergeant Boone. When he failed, McCall asked Vaughn to call for him. Vaughn telephoned Sergeant Boone and told him that McCall wanted to talk to him. This initiated McCall's third statement.

With Vaughn present at McCall's request, Sergeant Boone again advised McCall of his Miranda rights. McCall then waived his rights and told Sergeant Boone and Sergeant Wilbur Williams, the officers investigating the Lilly murder, that Robert Seltzer had "knocked a man off" but that he did not know who the "trigger man" was, and that a .30-06 or a .30-30 caliber gun had been used.

Sergeant Boone told McCall that he "thought that most of what he [McCall] was saying was not true. And that telling lies was not the right thing to do." Sergeants Boone and Williams then left the room to decide what to do next. Boone testified that before he left the room he "observed David Vaughn shaking his head, and David Vaughn stated to me, 'I want to talk to him alone a few minutes,' and I asked Larry if he wanted to talk to David, and he stated that he did."

The officers remained outside the room for "about three to five minutes." When they returned, McCall stated that he wanted to "tell the truth," and that he wanted Vaughn to remain with him. After again being advised of his Miranda rights, McCall made his fourth statement.

In direct contradiction of the State's evidence that the statements were intelligently, knowingly, and voluntarily given, McCall testified that his statements were the result of threats, coercion, and physical torture.

On appeal, McCall argues that his statements were inadmissible because they were taken in violation of his right to counsel in direct violation of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), because he was represented by counsel but was questioned without counsel present, and because Vaughn "was the police's agent, planted by Detective Boone in the same jail cell, to solicit involuntary and coerced statements from the Appellant in regards to the Lilly case." Appellant's brief, p. 49.

Unquestionably, McCall's first statement was volunteered and not in response to any police questioning. "Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today." Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).

Since the second statement was introduced by McCall and not by the State, its admission does not constitute ground for error. Any error in admitting the other statements was cured when McCall voluntarily took the witness stand at trial in his own defense and admitted giving the first, third, and fourth statements, which had already been introduced by the State, and introduced the second statement which had not been placed before the jury. "A defendant cannot complain of the admission of improper evidence when he himself has testified to the same facts." Lewis v. State ex rel. Evans, 387 So.2d 795, 807 (Ala.1980); Yelton v. State, 294 Ala. 340, 342, 317 So.2d 331 (1974). "[T]he introduction of evidence of confessions should not work a reversal where the defendants had taken the stand and given testimony substantially in the language of the confessions." Boulden v. State, 278 Ala. 437, 452, 179 So.2d 20 (1965); Chandler v. State, 283 Ala. 29, 33, 214 So.2d 306 (1968). "Even though there may have been error in admitting an admission or confession, such error is cured or rendered harmless by the defendant's own testimony which is substantially in the language of the confession or admission." Romine v. State, 384 So.2d 1185, 1188 (Ala.Cr.App.), cert. denied, Ex parte Romine, 384 So.2d 1188 (Ala.1980).

McCall cannot be permitted to introduce evidence of an allegedly inadmissible statement, where the prosecution had made no reference to such statement before the jury, and then claim that its admission prejudiced his trial. "An accused cannot by his own voluntary conduct invite error and then seek to profit thereby. It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choice." Aldridge v. State, 278 Ala. 470, 474, 179 So.2d 51 (1965). Error cannot be predicated upon the admission of a statement introduced and put in the record by the defendant himself. Truex v. State, 282 Ala. 191, 192, 210 So.2d 424 (1968). "Sometimes called the doctrine of invited error, the accepted rule is that where the injection of allegedly inadmissible evidence is attributable directly to the action of the defense, its introduction does not constitute reversible error." United States v. Taylor, 508 F.2d 761, 763 (5th Cir.1975).

Additionally, although we reach no conclusion one way or the other on the question, we are not convinced that McCall's second statement was taken in violation of the Edwards v. Arizona rule that when a suspect has requested counsel the interrogation must cease unless the suspect himself initiates the conversation. Although interrogation may not continue, the police legitimately may inquire whether the suspect has changed his mind about speaking to them without an attorney. Moulds v. State, 429 So.2d 1176, 1178 (Ala.Cr.App.1983). "Miranda does not erect 'an absolute per se bar on any conversation with the accused by investigating officers after the former has requested counsel. It only inhibits investigative interrogation related to the specific crime itself.' United States v. Grant, 549 F.2d 942, 946 (4th Cir.)...