Merriweather v. State

• Decision Date: 28 May 1993
• Citation: 629 So.2d 77
• Parties: Leo MERRIWEATHER, Jr. v. STATE. CR 91-1928.
• Court: Alabama Court of Criminal Appeals

Page 77

629 So.2d 77

Leo MERRIWEATHER, Jr. v. STATE.

CR 91-1928.

Court of Criminal Appeals of Alabama.

May 28, 1993.

Rehearing Denied July 9, 1993.

Certiorari Denied Oct. 15, 1993

Alabama Supreme Court 1921605.

Terri Murrell Snow, Midfield, for appellant.

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

BOWEN, Presiding Judge.

Leo Merriweather, Jr., the appellant, was indicted in separate indictments and convicted for murder made capital because it was committed during a burglary in the second degree, in violation of Ala.Code 1975, § 13A-5-40(a)(4), and murder made capital because it was committed during a robbery in the first degree, in violation of § 13A-5-40(a)(2). The trial court followed the jury's recommendation and sentenced the appellant to life imprisonment without the possibility of parole. The appellant raises three issues on this direct appeal from that conviction.

I.

The appellant contends that it was error to admit into evidence the statements he made in the time between his initial arrest for public intoxication and his subsequent arrest for murder because he claims he was not advised of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He further contends that the inculpatory statements made and the incriminating evidence gathered as a result of the statements he made after his arrest for murder and after he was advised of his Miranda rights were also inadmissible because, he claims, he was so intoxicated that he did not have the mental capacity to knowingly and intelligently waive those rights.

We reject the State's contention that these issues are procedurally barred because the court failed to rule on appellant's motion to suppress these statements. The record does indicate that the appellant's motion to suppress was, in fact, denied. ¹

The Facts

Lewis Cassell was employed as a security guard at Diamond Rubber Products, Inc., in Midfield, Alabama. He was murdered around 10:00 on the night of March 16, 1990, during a burglary and robbery of the company's business office. Cassell had been beaten in the head with a lug wrench and had been shot four times. Three of those gunshot wounds were fatal.

Detective Jay Miller of the Midfield Police Department investigated the murder. He testified that the victim's automobile and the office "money box" were missing and that a bloody lug wrench and two prints from the sole of an Adidas tennis shoe were found at the scene of the crime. Miller concluded that the murderer was an employee or former employee of Diamond Rubber Products. A $1,000 reward was offered by the Rubber Company for information about the murder.

On March 20, 1990, shortly after midnight, an individual identifying himself as Leo Merriweather telephoned the Midfield Police Department. The dispatcher who received that call testified:

"I received a telephone call from a black male subject. And he asked to speak with Officer Miller. And I told him Officer Miller was not on duty and asked if I could help him. And he said that he had been kicked out of his mother's apartment and he was walking down the road and he had found Mr. Cassell's car.

"And I asked him if he was it [sic] a blue Ford and he said yes, it is a blue Ford, four-door, and the keys are in it.

"....

"And he said someone by the name of McMillian was with him.... [H]e said he was calling from a pay phone. And then I asked him what his name was and he said his name was Merriweather.

"And I asked him to repeat the address and he said he was at 13th Street and Tuscaloosa Avenue and he needed Midfield Police there. I told him I would send Midfield Police and he said he would wait there and I dispatched a car." R. 752-753.

The caller's description of the automobile fit that of the victim's missing automobile. There was also testimony that the caller inquired about the offered reward. R. 106. Officer Kenneth Gallman was dispatched to the location and Detective Miller was notified.

Because the telephone caller was placed in the police jurisdiction of Birmingham, Birmingham Police Officer H.L. Thompson and his partner were dispatched to the caller's location. Officer Thompson testified that as they approached the area, he observed the appellant "standing in the middle of the street waving his arms and yelling something." R. 66. The appellant "[l]ooked like he was trying to flag somebody down. But I don't think he saw us come up." R. 78. Right before the patrol unit stopped, Officer Thompson observed the appellant go "over to the man on the phone, push[ ] him, grab[ ] the phone receiver out of his hand and ... start yelling." R. 68. The officers intervened to "defuse the situation" and to prevent a fight. R. 79.

The officers "put [the appellant] on the hood of the [patrol] car," and noted that he had been drinking. R. 762. Thompson testified that "we decided we were going to put him in jail for public intoxication because of the way he was acting and the fact he was drinking and staggering and speaking the way he was." R. 70. The appellant was arrested because he smelled strongly of alcohol, his speech was slurred, he staggered when he walked, and "he was in the middle of the street and he was disorderly, and loud, and boisterous." R. 91.

As soon as the officers got to the appellant, they frisked him, handcuffed him, and placed him in the backseat of the patrol car. Thompson testified that "[a]t that point he kept saying I'm the one that called you" because he had found the car belonging to the "guy that got killed in Midfield." R. 70. According to Thompson, the appellant stated that he worked at the place where the guard had been killed and recognized his car, and that he had seen "two black males walk away from the car shortly before he called the police." R. 73. Thompson testified:

"Well, once we secured him and handcuffed him and put him in the car he said well, I'm the one that called. I called you all. And we said what did you call us for.

"He said I know where that car is that was involved in the homicide in Midfield. And so he showed us where the car was at." R. 763.

The car was around the corner in an alley. Thompson testified, "[H]e just told us it was involved in a homicide in Midfield. I didn't know anything about the thing. He was having to tell me everything about it." R. 765.

Thompson testified that appellant's speech was "kind of slow or slurred like he was intoxicated." R. 69. Thompson stated that it was his opinion that the appellant was under the influence of alcohol. Thompson and his partner told the appellant "to wait for Midfield to get there" before relating any additional details. R. 73.

Thompson testified that the appellant was not given Miranda warnings after his arrest for public intoxication because the offense occurred in their presence and because the appellant "wasn't a suspect." The appellant told the officers that he had seen "the suspects ... walk[ ] away from the car." According to Thompson, the appellant "was a witness," not a suspect. R. 96 The appellant then voluntarily directed the officers to the car, which was in a nearby alley.

Midfield Police Officer Gallman arrived "just a few minutes" after the appellant had been handcuffed and placed in the patrol car. R. 81. Gallman wanted the Birmingham Police "to wait around" until Detective Miller got there so Miller could talk to the appellant. R. 85.

Miller arrived in five or ten minutes. He testified that he did not consider the appellant a suspect in the murder at this time, and that he was not aware that the appellant's name appeared on a list of Diamond Rubber Products employees which Miller had obtained in his investigation of the murder. In his investigative notes, Miller indicated that the appellant was "very intoxicated" when he first observed him. R. 1104.

Miller asked the appellant, who was handcuffed in the back seat of the patrol unit, about the car and what he was doing in the area:

"I asked him a couple questions about the car, how he come about it, and generally what he was doing in the area. He explained to me his situation how he came about the car.

"....

"He said he was walking to work, and I don't believe at the time I knew it was Diamond Rubber--he said he was walking to work and he had spotted the car and heard about it on the news and tried to call the police.

"He had seen two black males run from the alley and the car.

"....

"I began to ask him you know where he worked, and he said he worked for Diamond Rubber and he had talked to Mr. Blumenthall and he had told him to go to work.

"And I asked him where he lived and he explained the situation, he had problems at home and the police asked him to leave and that was why he was going that way." R. 109-111.

During this initial interview, Miller learned that appellant worked at the Diamond Rubber Plant, and noticed that the car was not located on a direct route between the appellant's house and the plant. At that point, Miller realized that the appellant "wasn't on his right way to work." R. 111. Miller also asked the appellant whether he had touched the automobile, "so we could fingerprint the right places if he did touch it or not and he said.... [h]e had touched the trunk of the car." R. 114.

Miller informed the patrol officers that "if they were going to put [the appellant] in jail.... [Miller] want[ed] to talk to him." R. 111. The Birmingham officers did intend to talk the appellant to jail so Miller told the officers "to hold him, [because] I want[ ] to talk to him." R. 201. Miller testified: "I asked the Birmingham officer to put him in a holding cell so I could talk to him without them incarcerating him, which would mean probably--they put him in a holding cell downstairs." R. 975.

Approximately 20 minutes after his arrest, the appellant was taken to the Birmingham jail and charged with public intoxication. Prior to the time Miller went to the City...