Miller v. State

• Decision Date: 05 October 1976
• Docket Number: 4 Div. 439
• Citation: 337 So.2d 1360
• Parties: Clarence MILLER and Charles Moore v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1360

337 So.2d 1360

Clarence MILLER and Charles Moore v. STATE.

4 Div. 439.

Court of Criminal Appeals of Alabama.

Oct. 5, 1976.

Charles Tom Payne, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Jane LeCroy Robbins, Asst. Atty. Gen., for the State.

G. H. WRIGHT, Jr., Circuit Judge.

The appellants Clarence Miller and Charles Moore were separately indicted by the Grand Jury of Coffee County, Alabama, for committing a crime against nature (sodomy). By agreement of the appellants, they were tried together and the jury found each guilty as charged in the indictments and the Court sentenced each of them to nine (9) years imprisonment.

The appellants were ably represented by court appointed counsel throughout the proceedings in the trial court and at the time sentence was pronounced and judgment entered. They are now represented here by other court appointed counsel.

On October 2, 1975, one Wayne Jackson was a prisoner in the Coffee County jail in Elba. After dinner on that day, Jackson was in the portion of the jail known as the 'bull pen' with the appellants and other prisoners.

Jackson had been convicted shortly before of Grand Larceny and as he, the appellants, and other prisoners were in the bull pen, Jackson's girl friend who had just been sentenced to three (3) years for her participation in the crime for which Jackson had been convicted passed by the cell and expressed her feelings towards him including her hope that he got a thousand years. Appellants and the other prisoners apparently shared her feelings towards Jackson and trouble thereafter ensued between Jackson, the appellants, and the other prisoners.

Jackson testified that appellant Moore tripped him causing him to fall and break his arm. Another of the prisoners by the name of Benjamin Bowers began beating on Jackson. After Bowers had struck Jackson five or six times, Jackson testified that the appellants made him strip and both of the appellants beat him with a belt, kicked him, and stomped on him. As a result of all of this, Jackson testified that he received a broken arm, his eye was cut, his lip busted, and his ear was injured.

After this, Jackson testified that appellant Moore took him back into one of the cells and made Jackson take appellant Moore's penis into his mouth. Appellant Miller then told Jackson to take a shower after which Miller made Jackson take Miller's penis into his mouth also. Afterwards, the appellants tied a cord around Jackson's neck and choked him. Appellant Moore told Jackson that if he testified against them, they would have him killed or they would do it themselves. Jackson was treated for his injuries at the Elba Hospital that night and when being brought back to jail from the hospital, he made a complaint to Deputy Don Rayford about what had occurred.

Both appellants testified in their own behalf and admitted striking Jackson. However, they both denied that they had Jackson take their penises into his mouth.

On October 6, 1975, Sgt. J. R. Cox, of the Alabama Bureau of Investigation talked with appellant Moore at the Pike County jail in Troy. Deputy Rayford was present at the time. After Cox fully informed appellant Moore of his Miranda rights, he asked him what he knew about the incident at the Coffee County jail on October 2, 1975. Appellant Moore told Sgt. Cox that he had received a fifty-five (55) year sentence previously as a result of a statement that he had given without an attorney and that he was not going to make any statement or sign anything without an attorney. Sgt. Cox then immediately ceased questioning Moore.

Sheriff Neil Grantham, Sheriff of Coffee County, picked up appellant Moore on October 13, 1975, at the Pike County jail in Troy for the purpose of taking him to the Coffee County jail in Elba. During the trip to Elba, the Sheriff and Moore engaged in a conversation and the Sheriff asked Moore if he wanted to tell him about the incident at the jail. The Sheriff told Moore, 'you don't have to say anything, you know that', and Moore replied, 'yes, I know it.' Appellant Moore then told the Sheriff he didn't know anything about it. However, after arriving at the Coffee County jail and prior to going into the jail, Moore made a statement to the Sheriff. As to what occurred upon their arrival at the jail, a part of the Sheriff's testimony is as follows:

'So we more or so just talked about everything until we got to the jail, in front of the jail. I said, 'Charles, you don't want to get this off your conscience?' I said, 'What was bothering you in Troy?' He said, 'Well, I was just homesick, just wanted to get back down here.' I said, 'Well, do you want to talk to me about it?' And, he went on voluntarily and made a statement to me.'

The Sheriff testified that prior to that time, he had not threatened appellant Moore, abused him, or offered him any hope of reward or any inducement to get him to make a statement.

The record does not disclose what statement the appellant Moore made to the Sheriff at that time.

Appellant Moore's version of what was said between he and the Sheriff upon arrival at the jail reads from the record as follows:

'A. He told me do I want to talk to him about jumping on Wayne Jackson. I told him I didn't know nothing. So we got started talking. So we got to the Elba jail down here and he told me he was going to put me in one of those little old padded cells down there. I told him I wanted to go back upstairs. So he said 'No, I would rather for you to stay down here tonight.' I said, 'Well, I'll talk to you.' So he took me out of the car and me and him talked. He threatened me.

Q. What do you mean by threatened you?

A. He told me that if I didn't sign that statement that there was something going to happen to me.

Q. Did he indicate to you what was going to happen?

A. No, he never did tell me.'

What statement, if any, the Sheriff wanted appellant Moore to sign at that time is not disclosed by the record.

The following afternoon, October 14, 1975, Sgt. Cox went to the Coffee County jail in response to a telephone call from Sheriff Grantham and took a written statement from appellant Moore which was introduced into evidence. Sgt. Cox, Sheriff Grantham and appellant Moore were present at the time this statement was taken. Prior to taking this statement from the Defendant, Sgt. Cox fully advised the Defendant of all of his constitutional rights and appellant Moore signed a written waiver of counsel form which was introduced into evidence. Sgt. Cox testified that neither he nor Sheriff Grantham threatened Moore or offered him any reward or hope of reward or any other inducement to get him to make a statement. Appellant Moore then made a statement to Sgt. Cox which was reduced to writing, read back to Moore by Sgt. Cox, and then signed by Moore. In his statement, Moore admitted beating Jackson and making Jackson take his penis into his mouth. He further stated in his statement, however, that he did not know whether or not appellant Miller made Jackson take Miller's penis into his mouth.

Appellants contend that the Court committed reversible error in allowing appellant Moore's statement to be introduced into evidence in that the statement was the sole product of trickery on the part of Sheriff Grantham and that the taking of this statement did not meet the constitutional requirements set out in the case of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.

It should be noted at this point that at the time of the taking of this statement, appellant Moore was 29 years of age, had a third grade education, and could not read but could sign his own name. His previous convictions for burglary and murder indicate that he is familiar with the law and court proceedings.

A confession may be admitted in evidence...