Otinger v. State, 8 Div. 416

• Decision Date: 13 August 1974
• Docket Number: 8 Div. 416
• Citation: 299 So.2d 333,53 Ala.App. 287
• Parties: Frankie OTINGER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 333

299 So.2d 333

53 Ala.App. 287

Frankie OTINGER v. STATE.

8 Div. 416.

Court of Criminal Appeals of Alabama.

Aug. 13, 1974.

Ronald P. Thompson, Albertville, for appellant.

Arthur B. Briskman, Sp. Asst. Atty. Gen., Mobile, for the State.

CLARK, Supernumerary Circuit Judge.

Appellant-defendant was found guilty by a jury of burglary in the second degree. He was sentenced by the court to imprisonment in the penitentiary for a term of three years. This is an appeal from the judgment of conviction and sentence.

The evidence shows that on the evening of January 9, 1973, the Westside Grocery located in Boaz, Marshall County, was burglarized. Mixed brands of cigarettes, a quantity of gun shells, a cigarette lighter, a quantity of meat and lard, a waffle iron and an electric percolator were taken therefrom. Such evidence constituted proof of the corpus delicti of the count of the indictment upon which the verdict was returned and judgment rendered.

Stevie Hefner, called by the State as a witness, testified that he, appellant-defendant, and another party, identified by him as Roy and otherwise identified as Roy Harvell, broke into the store on the evening involved, with a lug wrench from his car, went inside, took some shot gun shells, a flashlight, eight packs of bacon, some cigarettes, an electric coffee pot and a waffle iron, gathered them all up and took them to his car, hid some of the items at or in a sewer, and Roy carried the waffle iron, the electric coffee pot, some cigarettes and bacon to Roy's house, where they let Roy out. The witness said he stayed all night with Otinger; the next day they returned to Roy's, ate breakfast there eating some of the bacon, at which time the coffee pot was being used; they then went to the sewer or sewer plant, where they had left the shot gun shells and some of the cigarettes and sold the shot gun shells to Donnie Haygood.

A search warrant as to Roy Harvell's house was issued on January 11, 1973, and a quantity of cigarette packs, a waffle iron and an electric percolator were found.

Defendant, while in jail on a charge of violating the prohibition law, was questioned by officers including Chief Kenneth Ritchie of the Boaz Police Department, at which time, according to Chief Ritchie, defendant confessed that he and the others named had burglarized the Westside Grocery on the evening of January 9, stating that they prized the lock off the front door.

Defendant and Roy Harvell, called a witness by defendant, testified that they were not guilty of a burglary and disclaimed any knowledge of it. Defendant also denied that he confessed the burglary as testified by officers, stating that at the time of the claimed confession he was drunk some of the time, but that he could remember some of what he said and that he told them he knew nothing about it.

Appellant's insistence on a reversal centers chiefly upon the action of the trial court in admitting in evidence the claimed oral confession of defendant. Through diligent counsel, both on the trial and on appeal, appellant has stoutly urged that the admission of such evidence was violative of defendant's constitutional right of freedom from compulsory self-incrimination, insisting at the same time just as strongly that in fact defendant did not confess the crime. We are impressed with the argument, the evidence upon which it is based, the circumstances as to the question of intoxication of defendant at the time of the claimed confession, but we cannot say that the trial court abused the discretion vested in it in making a determination, based on a large amount of testimony presented on voir dire examination of several witnesses pro and con on the questions of whether defendant was intoxicated at the time and whether his rights were clearly revealed to him as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694; Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977. Appellant's main contention in this respect, as we understand it, is not that there was no evidence sufficient to show that all of defendant's constitutional rights were protected, but that it was either so weak or the testimony otherwise was so strong that the claimed confession should not have been admitted in evidence. The defendant claimed, with evidence of others to corroborate it, that he was furnished malt liquor and gin to drink and that beer was given to Roy Harvell before they were questioned. The seriousness of these charges, which gives us additional pause, seems to have been fully and fairly considered by the trial judge with all other evidence as to the questions of whether defendant had been properly apprised of his right to counsel, whether he had intelligently and knowingly waived his right thereto and whether his confession met all the tests as to voluntariness. We conclude as did the Supreme Court in Jones v. State, 292 Ala. 126, 290 So.2d 165, in speaking through Justice Faulkner as follows:

'This court held in Homer Lee Smith v. State, 291 Ala. 507, 282 So.2d 907 (1973) that the jury is to consider all of the facts and circumstances surrounding the taking of a confession in determining the weight and credibility that it will give to the confession. And, it is well settled in this State that before a confession may be admitted into evidence, the State must make a showing to the trial court that the confession was voluntary. The trial court determines whether the confession was voluntary from the evidence addressed to it because prima facie a confession is presumed involuntary. The facts and circumstances attending the taking of the confession in this case are sufficient for the trial court to establish its voluntariness. The weight and credibility of the confession was within the province of the jury.'

With like impressiveness, appellant's counsel insists that the trial court erred in permitting or refusing to exclude the testimony of Stevie Hefner. Emphasis is laid upon a conflict in the testimony given by Hefner on the trial and a written statement he had previously made in which he had indicated that after the burglary he had taken Roy Harvell and defendant to defendant's house and left them there for the night, while on the trial he testified that he had taken Harvell home and that Harvell entered his home carrying some of the merchandise taken during the burglary. Also, emphasis is placed on...