McCants v. State

• Decision Date: 13 May 1968
• Docket Number: 1 Div. 458
• Citation: 211 So.2d 877,282 Ala. 397
• Parties: Climmie L. McCANTS v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 877

211 So.2d 877

282 Ala. 397

Climmie L. McCANTS v. STATE of Alabama.

1 Div. 458.

Supreme Court of Alabama.

May 13, 1968.

Rehearing Denied July 3, 1968.

Vernon Z. Crawford, Mobile, for appellant.

MacDonald Gallion, Atty. Gen., and Lloyd G. Hart, Asst. Atty. Gen., for the State.

MERRILL, Justice.

Appellant was indicted and convicted of the charge of murder in the first degree. The victim was Ola Mae Turner who died of a gunshot wound in her head. The jury fixed the punishment at death by electrocution.

Miss Ola Mae Turner operated a small fruit stand and fish market near Houston and Dublin Streets in Mobile. Her living quarters were in the rear of the building.

On August 17, 1966, around 9:00 P.M., John Shevers found Miss Turner lying behind the counter of the store in a puddle of blood. Shevers went across the street to a drugstore and asked druggist, George Morgan, for help. Morgan found Miss Turner lying behind the counter. She asked for help and complained of being sick. Morgan called the police. Officer Elwood Turner arrived and noticed several dollar bills lying on the floor as he entered the store, and saw the cash register was open. An ambulance came and Miss Turner was taken to a hospital where she died a few hours later. An autopsy was performed on her and the cause of death was determined to be a gunshot wound which entered the left ear.

Police investigation revealed that witnesses, attracted by the noise of the shot, saw two Negro men running from the store to a station wagon. Descriptions of the men and the car were secured. Detective Bell went to appellant's home seeking to locate him on the morning of August 19. He was not there, but around eleven o'clock that day, appellant called Bell and said he had heard the police were looking for him and that he was at the apartment of his sister, Shirley Hale. He offered to come to the police station but Bell told him to wait where he was. A few minutes later Appellant's first argument is directed to the overruling of his objection to the testimony given by Captain Burch as to appellant's statements made to the officers at the sister's apartment. A proper predicate was laid as to voluntariness and the ruling of the court was correct.

Bell and five other officers went to the sister's apartment. The appellant, a twenty-three year old man, was arrested, and his constitutional rights explained to him. They questioned appellant as to the whereabouts of a pistol he had borrowed from his brother-in-law on May 16, and he told them he had left it under the seat of his automobile. A search warrant was presented to his sister and she was asked to accompany officer Simmons as he made a search. In the second bedroom searched upstairs, Simmons found a pistol, the murder weapon, under the top mattress of a bed. Before appellant was questioned at his sister's home, both appellant and his sister were handed cards on which his rights were printed and one of the officers read a card to them. Appellant was then taken to police headquarters and to jail.

After appellant had been taken to jail, he was questioned that day, the 19th Saturday the 20th, Sunday the 21st, and on Monday the 22nd, appellant signed a written statement giving in detail his actions and movements on the evening of the 17th. He denied shooting Ola Mae Turner, but did make inculpatory statements which clearly made him an accessory. He said he and Robert Hughes were in his station wagon together. Hughes asked him if he had his 'heat' and he told him it was on the seat. Hughest wanted him to drive to 'the Fruit Store' on Houston Street. Hughes told him the lady down there sometimes slept and he was going to get some money; that he was going to get the drop on the lady. Appellant drove near the store and parked. 'He was gone about three minutes when I heard a shot. When I saw him coming out of the store I walked at a fast pace toward my car and he ran to it. I asked him when he got in it if he got the money and he said yeah. I asked him what happened and he said he almost got caught and he hit the lady two or three times and the pistol went off.' They drove away and Hughes got out of the car after making arrangements to meet later. Appellant found some 'bills' on the seat and floor of the car after Hughes left. They amounted to $8.00. He went to various bars, shot dice and caught a bus for New Orleans at 7:00 A.M. on the 18th. The morning of the 19th, he caught a bus back to Mobile and arrived there at 9:45 A.M. He went to his sister's apartment and hid the pistol under the mattress where it was found.

The evidence is undisputed that at each interrogation appellant's rights were read to him before he was asked the first question.

Appellant testified that he signed the was made, the appellant's mother, his and her husband were present at the sister and her husband were present at the police station and his rights were read to him, he signed a waiver and one of the witnesses to his signature was his sister. The record shows the following:

'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. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one. We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to Court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you talk to a lawyer.

WAIVER

'I have read (written above the word to is the word 'the' in ink and the initials CLM written in ink (statement of my rights shown above. I understand what my rights are. I am willing to answer questions and make a statement. I do not want a lawyer. I understand and know what I am doing. No promises or threats have been made to me and no pressure of any kind has been used against me.

'Signed Sd/ Climmie L. McCants

'Witness Sd/ Shirley Hale

'Witness Sd/ Edwin A. Pennington

'Time 8:40 P.M.--8/22/66'

Appellant argues he should not have been questioned at any time at the police station because both Captain Burch and Detective Bell knew that his mother and his sister were contemplating hiring a lawyer for him.

Captain Burch testified that he asked appellant, shortly after he was booked on the 19th, if he wanted a lawyer and told him, 'You should call one, I think you need one.' Appellant said he would rather call his sister. Burch dialed the sister's number and left the room. On the 20th, appellant's mother told officer Pendleton that she was trying to employ an attorney; and Detective Bell testified that appellant's mother told him on the night of the 20th that she had contacted Honorable Vernon Crawford, the attorney who represented appellant in the circuit court and represents him here. He testified on cross examination:

'Q. What did she tell you?

'A That she had hired you and couldn't catch up with you and she left a fee at your office with a boy you had cleaning up and she caught you coming from the office, or fixing to go back to the office, and she had talked to you. * * *'

While Captain Burch was testifying, the following occurred:

'THE COURT: Captain Burch, on the 22nd when that alleged confession was taken did you, or someone in your presence, ask him if he wanted his lawyer with him at the time before he started writing?

'A Yes, sir.

'THE COURT: You did?

'A In fact we tried to get in touch with Mr. Crawford. In fact, I talked to him a couple of times whether he was going to...