Miles v. State

• Decision Date: 12 February 1985
• Docket Number: 6 Div. 222
• Parties: Danny Ray MILES, alias v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1228

476 So.2d 1228

Danny Ray MILES, alias v. STATE.

6 Div. 222.

Court of Criminal Appeals of Alabama.

Feb. 12, 1985.

Rehearing Denied April 23, 1985.

Certiorari Denied Nov. 1, 1985

Alabama Supreme Court 84-799.

James G. Stevens, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Joseph G.L. Marston, III, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

Danny Ray Miles was indicted by the grand jury of Jefferson County in December 1975, for the murder of Mr. Ronald After exhaustion of his state remedies, the appellant filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Alabama. One of his contentions was that because his attorney had not filed a brief when his appeal was originally submitted to this court, he was denied due process. In Mylar v. Britton, No. CV-79-A-1420-S (N.D.Ala.1980) (unpublished opinion), that court held that by the means of the "search the record rule" the appellant had received adequate appellate review. Appeal was taken to the United States Court of Appeals for the Eleventh Circuit. In Mylar v. Alabama, 671 F.2d 1299 (11th Cir.1982), it was held that "failure to file a brief in a nonfrivolous appeal falls below the standard of competency expected and required of counsel in criminal cases and therefore constitutes ineffective assistance." The court thereupon remanded the case to the district court with instructions to grant the petition for habeas corpus unless the State of Alabama within a reasonable time should grant Miles either an out-of-time appeal or a new trial. The State applied for a rehearing en banc, which was denied April 29, 1982, 677 F.2d 117 (11th Cir.). The state, thereupon, on June 5, 1982, petitioned the United States Supreme Court for a writ of certiorari to review the Eleventh Circuit's decision. The U.S. Supreme Court denied the writ without comment on July 6, 1983. Alabama v. Mylar, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983).

Harvel White. On March 25, 1976, Miles was convicted of murder in the first degree and was sentenced to a term of life imprisonment. Appeal was taken to this court but no brief was filed on behalf of appellant. By implementing the search the record rule, this court in Miles v. State, 343 So.2d 801 (Ala.Cr.App.1977), determined that the judgment of conviction was due to be affirmed. Thereafter in Ex parte Miles, 343 So.2d 806 (Ala.1977), the Alabama Supreme Court denied certiorari.

On August 16, 1983, this court, on motion of the State, granted the appellant an out-of-time appeal and appointed a new attorney to represent him. Hence, this appeal is now before us.

A careful review of the record reveals that the facts as related in Miles v. State, 343 So.2d 801 (Ala.Cr.App.1977) were completely correct and a restatement of those facts as contained therein follows.

The case

"involves a double murder, robbery, kidnapping and rape. The victims were Mrs. Clarice Knabe and Ronald Harvel White. Appellant was indicted for killing White with a .38 caliber pistol and one Samuel 'Bud' Yarber was indicted and convicted in the shooting death of Mrs. Knabe and he, too, was sentenced to life imprisonment. This is a classical case of two murder suspects, each trying to put the blame on the other and thus exculpate himself from a murder conviction. Their efforts backfired and justice still reigns supreme.

"This tragic episode began on the late afternoon of November 3, 1975, when appellant went to the apartment of Yarber around 6:30 p.m. About 45 minutes later they left in Yarber's car to go out drinking. They went to several bars and drank beer at each. Appellant asked Yarber to accompany him to K-Mart's Sporting Goods Department in order to purchase some ammunition for Yarber's .38 caliber pistol which appellant had previously asked to borrow. They went to K-Mart, where appellant purchased a box of ammunition around 9:00 p.m. that night. This purchase was recorded in a book which the manager of the Sporting Goods Department testified he was required by law to keep.

"The two men then returned to Yarber's apartment where Yarber gave appellant his pistol. As appellant was loading the pistol the pistol discharged and the bullet lodged in the wall or ceiling of the living room. Yarber became provoked at appellant for discharging the pistol in his apartment for fear he would be evicted. Appellant apologized to Yarber and carried the pistol out of the apartment and put it in his car.

"A short while later the two men left in appellant's car and went to the 2010 Lounge in downtown Birmingham, arriving there around 9:30 p.m. They parked in the rear parking lot and entered the lounge through the back door. There were a number of customers in the place at the time. They were all drinking and watching a football game on television. The football game was over just before 11:00 p.m. and everyone left except the bartender, Mrs. Clarice Knabe, Mr. Ronald Harvel White, appellant and Mr. Yarber. At this time, according to the testimony of Mr. Yarber given at a preliminary hearing, appellant pulled out the pistol he had borrowed from Yarber and ordered Mrs. Knabe and Mr. White to put their hands up and said, 'This is a stick-up.' Appellant ordered Yarber to lock the front door and then demanded all the money from Mrs. Knabe and Mr. White. Mrs. Knabe protested that the owner of the lounge did not leave any money in the place. Appellant walked behind the bar to check for himself. Appellant ordered White to empty his pockets on the counter and White put his wallet on the bar. At this time there was a knock on the front door and appellant ordered Mrs. Knabe and Mr. White out the back door and into the back seat of his car. Appellant ordered Yarber to drive the car. Yarber asked appellant where they were going and appellant told him to drive to the place where they had zeroed Yarber's deer rifle a few weeks previously. Yarber began traveling south on I-65 toward Hoover, Alabama, and turned south on Highway 31. They traveled south on Highway 31 to Highway 150 going toward Bessemer. During the entire trip from the 2010 Lounge appellant kept asking Mrs. Knabe what she was going to tell the owner of the lounge and she said, 'We're going to tell him that two colored men came in and robbed us.' Appellant asked White what he was going to say and White told him he was going to say the same thing that Mrs. Knabe was going to say.

"Appellant pointed the pistol at Mrs. Knabe and White in the back seat and told them to take off all their clothes. After they had completely disrobed appellant told Mrs. Knabe to get in the front seat between him and Yarber and she did. When they arrived at the appointed place appellant ordered Mrs. Knabe out of the car and told White to keep his hands up inside the car. Appellant then proceeded to have sexual intercourse with Mrs. Knabe on the trunk of the car while Yarber and White remained inside the car. He then ordered White out of the car and told Mrs. Knabe to lie on her back on the ground. Appellant ordered White to get on top of Mrs. Knabe. While they were in that position, according to sworn testimony given by Yarber at the preliminary hearing, appellant shot and killed both Mrs. Knabe and Mr. White. Appellant then reloaded the pistol, and he emptied it again into the bodies of the two victims. Yarber saw appellant standing over the two victims with the pistol in his hand and said he did not know how many shots were fired but thought there were ten to fifteen. Appellant then got back in the car and told Yarber to return to Highway 31, and to find some deep water so that he could dispose of the gun.

"As they drove along appellant directed Yarber to throw the clothes of the victims out of the car at different places and intervals along the highway. He then had Yarber drive to Lake Purdy off Highway 119 where appellant got out of the car and threw the pistol as far into the lake as he could throw it, and threw two unspent cartridges several feet out into the lake.

"While in the car on the way back to town appellant pressed Yarber to take some of the money that he had obtained in the robbery of Mrs. Knabe and Mr. White. Yarber told appellant that he did not want the money but he got around fifty dollars anyway, and appellant coached Yarber as to their alibi on this fateful night.

"Yarber was called as a State witness during appellant's murder trial but he refused to answer a single question posed to him by the trial court or the district attorney. Yarber would not even state his name. The trial court ruled that it would serve no useful purpose to hold him in contempt of court and sentence him to jail. The trial court, over appellant's objection, admitted into evidence Yarber's testimony given at appellant's preliminary hearing at which time Yarber was subjected to an extensive, vigorous, withering, thorough and searching cross-examination by appellant's lawyers.

"It is noteworthy that appellant testified at his own trial and his testimony as to all the details, places, and circumstances leading up to and culminating in the robbery, kidnapping and killing of Mrs. Knabe and Mr. White, in the main, pigtracked the testimony of Yarber with one exception: Appellant claimed that Yarber was the leading actor in the entire drama and it was Yarber who did all the things that Yarber accused appellant of doing."

I

Appellant first contends that the admission of testimony given by Samuel Yarber at a preliminary hearing violated his right to confront the witnesses against him, thus violating the Sixth and Fourteenth Amendments to the United States Constitution and Article One, Section Six, of the Alabama Constitution of 1901.

In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), the Court noted that "this court long ago held that admitting the prior testimony of an unavailable witness does not violate the Confrontation Clause. Mattox v. United...