Moore v. State

• Decision Date: 20 April 1982
• Docket Number: 3 Div. 426
• Citation: 415 So.2d 1210
• Parties: Joseph MOORE v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1210

415 So.2d 1210

Joseph MOORE v. STATE.

3 Div. 426.

Court of Criminal Appeals of Alabama.

April 20, 1982.

Rehearing Denied May 18, 1982.

Certiorari Denied, July 2, 1982

Alabama Supreme Court 81-728.

Frank W. Riggs, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the murder of his two month old son. Alabama Code 1975, Section 13A-6-2 (Amended 1977). Sentence was 50 years' imprisonment.

I

The defendant argues that his confession was involuntary because he was exhausted, intoxicated, intimidated and subjected to eight hours of interrogation.

The question of whether a confession is voluntarily made turns on the totality of the circumstances in each particular case. Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Crawford v. State, 377 So.2d 145 (Ala.Cr.App.), affirmed, Ex parte Crawford, 377 So.2d 159 (Ala.1979). The constitutional inquiry into the issue of voluntariness requires more than a mere color matching of cases. Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978).

The facts relevant to this issue are that in the early morning hours of Saturday, November 8, 1980, the defendant and his wife took their infant son to the emergency room because the baby had been having "convulsions, fever, breathing difficulties, things like that." The defendant remained at the hospital from 1:20 A.M. until 3:35 A.M. when he took the child home and went to bed.

Saturday night the defendant called the paramedics at approximately 11:55 P.M. because his son was again having difficulty.

The child was found dead in his baby bed at 6:00 Sunday morning when the defendant awoke. That morning, Montgomery Police officers talked to the paramedics and to the defendant and his wife. Investigator Ralph Connor and his partner investigated what they thought was a natural death. They interviewed the defendant regarding the circumstances of the death, and were finished with the defendant around 8:00 or 8:30 that morning. Nothing was told to these investigators about "any kind of injury or blow or anything."

Dr. Thomas Gilchrist performed an autopsy on the infant, Joseph Moore, Jr., beginning at 3:00 Sunday afternoon. Officers B. W. Smith and Allen Blankenship attended this autopsy and learned that the child "had died of a brain hemorrhage suffered by a lick" and that the child had died of "unnatural causes."

At trial, Dr. Gilchrist testified that, although he found no external evidence of injury, internal examination of the infant's head "showed extensive hemorrhage or bruising between the scalp and the skull. Underlying this, there was a fracture or breaking of the bones of the skull at the right back of the head" and one area of the brain itself had been bruised. These injuries "all related to blunt force or blunt trauma to the head." Dr. Gilchrist testified that the infant died of "blunt trauma to the head."

Dr. Gilchrist found "at least two events of injury" to the child's head. The various degrees of healing on the head indicated that some of the injury was several hours to a day old and other damage was four to six days old.

"Some of the injury, obviously, in my opinion, occurred before twenty-four hours before death because I think it is three or four days old. This injury may or may not have been apparent to the physician (in the emergency room). Other of the injury may well have occurred after that twenty-four hour period because we are talking about approximately several hours."

Dr. Gilchrist also testified as to the degree of force necessary to inflict or cause such an injury.

"It takes a considerable amount of force to cause such an injury to a child's head. More force than can be applied, say, from dropping a child on the floor, even, say, from a ceiling eight foot high down to a floor eight feet below."

After talking to Dr. Gilchrist, Officer Smith went to the defendant's residence "to pick up the mother and father of the baby to talk to them about what had occurred with the baby." The defendant was located and he and his wife were taken to police headquarters in a patrol car, arriving between 7:05 and 7:10 P.M. Sunday evening. At the hearing on the defendant's motion to suppress, it was apparently undisputed that the defendant was in custody at this time. ¹

Officer Smith testified that before taking the defendant and his wife to police headquarters, they were advised that "we would like to talk to them at police headquarters, and that we were investigating Joseph Moore, Jr.'s death, and we would like to interview them." The Moores never asked if they could stay--"the question never came up." The Moores were neither told that they had to go nor were they told that they did not have to go.

"He (defendant) asked us what we were doing there, and we explained to him that we were investigating the death of Joseph Moore, Jr. and we would like to talk to them at police headquarters. And that we would be glad to carry them down in a police vehicle. And they had volunteered to go with us."

Prior to this time, Officer Smith had talked to Investigator Connor and knew that the Moores had taken their child to the emergency room early Saturday morning.

Smith testified that at this time, the defendant did not appear to have been drinking.

At police headquarters, the defendant and his wife were separated. Officer Smith gave the defendant his Miranda warnings and the defendant signed a waiver of rights form at 7:30 Sunday night, less than thirty minutes after he had arrived at the police department.

In talking with the defendant, Officer Smith stated that "this was more of an interview in my estimation than it was an interrogation." Officer Smith "advised Joseph Moore, Sr. that the baby had died of unnatural causes, and that an autopsy had been performed by Doctor Gilchrist, the extent of the autopsy; and asked him had the baby received any type lick. And at that point, he gave me this statement." Smith began typing this first statement at 8:40 P.M. The defendant signed it at 9:15 P.M.

Prior to the time this first statement was actually taken, the defendant told Officer Smith that he had fallen down a staircase with the baby. Smith called Dr. Gilchrist between 8:00 and 8:10 P.M. to find out if the child's injuries could have been caused by such a fall. Before the defendant signed his statement, Smith told him that it was Dr. Gilchrist's opinion that "it couldn't have happened that way."

After the defendant signed the statement, Officer Smith talked to Dr. Gilchrist for 25-30 minutes at the police station. During this time the defendant was left alone in the interrogation room and there was no one watching him. Smith testified that the defendant "was not in custody" and had not been placed under arrest. Smith "did not feel like it warranted anyone sitting and watching him." The defendant was not told and did not ask if he was free to go.

Sometime after 10:00 P.M., the defendant changed his story and told Officer Smith that he had "slapped at a roachie bug and hit the baby on the head." Smith then went back and conferred with Dr. Gilchrist who said "that the blow that the baby received to the head could not have come from a human hand; not enough force alone."

Around 11:00 or 11:30 P.M., Smith and the defendant took a "break" and Smith bought the defendant a Coca-Cola. Smith told the defendant that he did not feel like the defendant was being truthful. At that point, the defendant told Smith that he wanted to get it off his mind and wanted to tell what really happened.

At approximately 11:45 P.M., the defendant changed his story again. This resulted in a second typewritten statement being signed by the defendant at 2:25 Monday morning. Before this statement was given, the defendant was again warned of his constitutional rights. He signed a written waiver at 1:20 A.M.

Smith testified that the only complaint the defendant ever made was "Did I (Smith) honestly think that he would kill his baby?" The defendant did not tell Smith that "he was sleepy, tired or hungry, or anything like that." The defendant did not appear tired to Officer Smith and Smith did not observe any signs of fatigue about him. The defendant never told Smith that he wanted to go home.

The defendant was not denied food or drink.

"Yes, sir, between the first and second statement, I did (offer him food). I did buy him a coca cola. I asked him if he would like a candy bar or anything from downstairs. I let him get approximately two to three drinks of water while he was up there. And I did offer him a cup of coffee when I got a cup of coffee just before we started the second statement."

Although Smith did raise or "slightly elevate" his voice "to express points" he did not "holler" at the defendant.

Sometime during the questioning Officer Smith advised the defendant that "his wife had made the statement that she had heard a noise (a thud) and heard the baby screaming upstairs, and asked him what the noise was." Several times after the defendant give the first statement, Smith told him that he didn't believe it.

Officer Smith testified that he never forced, threatened, or coerced the defendant, and that he made no promises or other inducements in order to get a statement.

The defendant was twenty years old and employed with the City Sanitation Department. He had never been arrested before. He had a ninth grade education and because of this Officer Smith "made it very clear that he understood his constitutional rights." See Berry v. State, 399 So.2d 354 (Ala.Cr.App.1981).

The defendant presented evidence which revealed that he was extremely tired and highly intoxicated when he was taken into custody.

Although the defendant did not testify at the pretrial suppression hearing, at trial the defendant testified that during the interrogation, he kept "passing out" and that he was "tired, sleepy, worried, hurt...