Nichols v. State

• Decision Date: 25 November 1992
• Docket Number: 5 Div. 560
• Citation: 624 So.2d 1328
• Parties: Donald Ray NICHOLS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1328

624 So.2d 1328

Donald Ray NICHOLS v. STATE.

5 Div. 560.

Court of Criminal Appeals of Alabama.

Nov. 25, 1992.

Rehearing Denied May 7, 1993.

Certiorari Denied July 23, 1993

Alabama Supreme Court 1921255.

AFTER REMAND FROM ALABAMA SUPREME COURT

McMILLAN, Judge.

This cause was remanded to this court pursuant to the decision of the Alabama Supreme Court in Nichols v. State, 624 So.2d 1325 (Ala.1992), wherein that court held that the appellant was not denied a fair trial because he was unable to discuss the case, before trial, with one of the State's witnesses. Therefore, the remaining issues raised by the appellant will be discussed.

I

The appellant argues that the trial court erroneously denied his motion for individual voir dire examination of the jury venire. However, the manner of conducting voir dire examination of a venire is a matter within the broad discretion of the trial court. Stringfellow v. State, 485 So.2d 1238, 1240 (Ala.Cr.App.1986). In this case, the trial court voir dired the 99-member jury panel collectively. It informed the attorneys that individual voir dire examination would be permitted on certain issues. There is no indication in the record that this procedure did not sufficiently uncover any possible prejudice or bias of a juror. United States v. Brooks, 670 F.2d 148 (11th Cir.1982), cert. denied, 457 U.S. 1124, 102 S.Ct. 2943, 73 L.Ed.2d 1339 (1982). Therefore, we find no abuse of discretion by the trial court in denying the appellant's motion for individual voir dire examination of the jury venire.

II

The appellant argues that his statement should not have been admitted at trial, because, he says, it was given without a knowing, intelligent, and voluntary waiver and was the product of an illegal detention. Specifically, the appellant alleges that he was arrested by a number of police officers, and that he was handcuffed and taken by police officers who were "physically larger" than him to the Mobile Police Department. He states that he was then put into a room with Lt. Williams and Sgt. Reinhart, where he says Lt. Williams threatened his relatives before turning on the tape recorder. He alleges that he was not told that he was a suspect in the victim's murder. He further claims that, during the questioning, Lt. Williams became extremely angry and accused the appellant of lying. Thus, the appellant claims that "[t]he entire atmosphere in which the statement was given" included a great deal of intimidation and fear and therefore led to his will being overborne. He further claims that he had been drinking.

Thus, the appellant does not claim that he was not informed of his rights, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but rather makes claims regarding the voluntariness of his statement.

The record indicates that a hearing was held to determine whether the appellant's statement should be suppressed. At that hearing, Lt. Williams testified that Sgt. Reinhart was present when he took the appellant's statement. He testified that he did not offer the appellant any reward or hope of reward and that he did not threaten the appellant or induce him to give a statement in any way. Lt. Williams testified that the appellant did not appear to be intimidated or apprehensive and that he was questioned about his use of alcohol and drugs. After the appellant testified during the suppression hearing, Lt. Williams was recalled. He testified that during the questioning he did not smell alcohol on the appellant and that the appellant did not indicate that he had any difficulty understanding what was happening or being said to him. Lt. Williams denied threatening the appellant's relatives and testified that, although he did ask the appellant for addresses of certain of his relatives, he did so to determine where the appellant lived. Lt. Williams testified that he advised the appellant that he was under arrest for one crime and also that he was a suspect in a murder case.

The trial court's determination that the appellant's statement was voluntary was not manifestly wrong. Tice v. State, 386 So.2d 1180 (Ala.Cr.App.), cert. denied, 386 So.2d 1187 (Ala.1980). Nor was the trial court's determination palpably contrary to the great weight of the evidence, based on the conflicting evidence introduced during the suppression hearing. Watkins v. State, 497 So.2d 1153 (Ala.Cr.App.1986). Further, a defendant need not be apprised of the charge against him before he can knowingly, intelligently, and voluntarily waive his rights and make a statement. Myers v. State, 401 So.2d 288 (Ala.Cr.App.1981).

The appellant also argues that his arrest was illegal, because the police did not have sufficient probable cause to arrest him, in that the only basis for his arrest was statements made by a girlfriend of the victim. The evidence introduced at trial indicated that before his arrest the appellant was informed by the victim's girlfriend that she last saw the victim leaving to go hunting with the appellant. The appellant returned alone from the hunting trip and told the victim's girlfriend that the victim wanted to sell certain personal belongings in front of a store. The appellant then loaded the victim's video cassette recorder into the victim's Blazer vehicle and left, after having told the victim's girlfriend that he would return to pick her up. However, neither the victim nor the appellant returned. The girlfriend stated that she did not notify the police because the victim's camper trailer and his boat were left in her driveway. She stated that she therefore believed the victim had decided to go to Mobile and would soon return.

In addition, the police had descriptions of a number of the victim's missing items, including guns, rings, gold medallions, gold chains, and watches, from his girlfriend and his sister. Based on that information, Lt. Williams had spoken with an employee of the First Federal Gold and Silver Exchange, concerning the police's search for a gold medallion. Lt. Williams gave the employee a description of the appellant and, later that day, the employee contacted the Mobile Police Department and told them that the appellant was in the business trying to sell a gold medallion. Lt. Williams drove to the business and arrested the appellant. The gold medallion was seized at that time.

This evidence showed that there was sufficient probable cause to justify the appellant's arrest. See, e.g., Hood v. State, 598 So.2d 1022 (Ala.Cr.App.1991); Parker v. State, 587 So.2d 1072 (Ala.Cr.App.1991); Freeman v. State, 586 So.2d 1013 (Ala.Cr.App.1991).

III

The appellant argues that the trial court erred in determining that there was insufficient cause to allow the appellant's appointed attorney to withdraw and to appoint another attorney. The court-appointed attorney had filed a motion for leave to withdraw, based on an ethics opinion issued in September 1988, indicating that a conflict of interest existed in a case where one member of a law firm served as a municipal court judge, while another member of that firm represented criminal defendants by court appointment and where city police officers participated in the investigations of those criminal cases.

The record indicates that a hearing was held on the court-appointed attorney's motion. The captain of the Police Department of the City of Opelika testified that a law partner of counsel's firm was a municipal court judge for the City of Opelika. He further testified that several Opelika police officers had been sent to the scene of the crime for which the appellant was being tried, but when the location of the victim's body was determined to have been outside the jurisdiction of the City of Opelika, the crime scene was turned over to officials from the Lee County Sheriff's Office. The captain of the Opelika Police Department further testified that the police department had nothing further to do with the investigation.

In denying the motion, the trial court stated:

"I'll note for the record, that this motion was filed with the Court, or filed with the Clerk, on October the 25th. This case has been set for trial on October 31 for some time. So, the motion is filed almost on the eve of trial. This is a most serious case. The number of attorneys who practice law in Lee County available for appointment of criminal cases is somewhat limited. The Court knows that [defense counsel] is a highly ethical attorney and if there had been any question raised in his mind about that as to his representation in this case, I believe he would have brought it to the attention of the Court without the necessity of having been spurred to do that by the ethics opinion. The Defendant has a right to a speedy trial and at some point he has a right to have this case resolved, just as the State does. In view of these facts, and the matters that are set forth here today, the Court is going to respectfully deny your motion for leave to withdraw."

The appellant failed to present any evidence of an actual conflict. The possibility of a conflict of interest does not rise to the level of a Sixth Amendment violation. Smith v. White, 815 F.2d 1401 (11th Cir.1987), cert. denied, 484 U.S. 863, 108 S.Ct. 181, 98 L.Ed.2d 133 (1987). Ex parte Bell, 511 So.2d 519, 522 (Ala.Cr.App.1987). Because there is no actual conflict of interest in the present case, "[t]he accused has the burden of proof and must overcome the 'presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)." Id. See also Crawford v. State, 479 So.2d 1349, 1355 (Ala.Cr.App.1985) (no conflict of interest found where the defendant's trial counsel had formerly served as a municipal judge). Jackson v. State, 502 So.2d 858, 866-68 (Ala.Cr.App.1986) (wherein this court determined on return to remand that defendant's court-appointed attorney's subsequent...