Pardue v. State, CR-94-1664

• Decision Date: 23 August 1996
• Docket Number: CR-94-1664
• Citation: 695 So.2d 199
• Parties: Michael Rene PARDUE, a/k/a "Monkey" v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 199

695 So.2d 199

Michael Rene PARDUE, a/k/a "Monkey" v. STATE.

CR-94-1664.

Court of Criminal Appeals of Alabama.

Aug. 23, 1996.

Rehearing Denied Dec. 20, 1996.

Certiorari Denied May 16, 1997

Alabama Supreme Court 1960535.

E. Barry Johnson, Birmingham, for Appellant.

Jeff Sessions, Atty. Gen., and Robin Blevins, Asst. Atty. Gen., for Appellee.

COBB, Judge.

In 1973, the appellant, Michael Rene Pardue, pleaded guilty to the murder of William Harvey Hodges. In 1995, following a federal court order granting Pardue's petition for habeas corpus relief, Pardue was reindicted by a Mobile County grand jury; he was subsequently found guilty by a jury of the murder of Hodges. He was sentenced to serve 100 years in prison with credit given for 22 years already served.

The appellant was originally charged with three murders that occurred between midnight and 6:00 a.m. on May 22, 1973. Two of the murders took place in Mobile County and one in Baldwin County. On October 24, 1973, the appellant pleaded guilty in Mobile Circuit Court to first degree murder for the murder of William Harvey Hodges and Theodore Roosevelt White. The appellant was convicted after a jury trial in Baldwin County Circuit Court for the murder of Ronald Rider. That conviction was reversed by the Alabama Supreme Court in Ex parte Pardue, 661 So.2d 268 (Ala.1994). On December 16, 1994, pursuant to a petition for a writ of habeas corpus challenging the voluntariness of his confession, the United States District Court for the Southern District of Alabama overturned the Mobile convictions for the murders of Hodges and White. The Federal court gave the State of Alabama 180 days to retry the appellant or dismiss the indictments. Pardue was reindicted for the murder of Hodges and the State nol-prossed the charge for the murder of White because vital witnesses had died.

Although the appellant raises 11 issues on appeal, we address only the issue concerning the suppression of evidence of Pardue's May 25, 1973, tape-recorded statement in which he confessed to the murder of Hodges. In this statement, Pardue corroborates a theory espoused by one of the officers who was questioning him, Officer William T. Travis, chief investigator for the Mobile County Sheriff's Department, that between midnight and 6:00 a.m. on May 22, 1973, Pardue, Johnny Brown, and Theresa Lanier robbed a Thoni gasoline station in Baldwin County and Pardue killed the station attendant, Ronald Rider, and that five or six hours after killing Rider, Pardue went to the AA Gas Station in Mobile County and killed Hodges.

When Pardue made the May 25, 1973, statement, he was 17 years old; he had been in custody for approximately 78 hours; and he displayed signs of a mental disorder, which testimony from a psychologist indicated was a result of lifelong physical and mental abuse by his father and stepfather and because his mother had died in his arms in March 1972 after he watched his father shoot her in the head. The interrogation that yielded the statement was made before approximately six officials. ¹ It was also given without the aid of counsel even though two different attorneys had come to the Saraland jail on two occasions claiming to represent Pardue and instructing officers not to question Pardue out of the attorney's presence.

On March 16, 1995, Pardue moved to suppress the May 25, 1973, statement, arguing 1) that his sixth amendment right to counsel had been violated because, he says, his interrogators knew that he had retained a lawyer who had instructed the police not to interrogate the appellant; 2) that his fifth amendment right against self-incrimination and his right to counsel had been violated because, he says, he was subjected to 78 hours of interrogation without having been given Miranda warnings at the outset of the interrogation, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); and 3) that his statement was inadmissible because, he says, it was the progeny of a previous illegally elicited statement made two days earlier (i.e. May 23, 1973) without any showing that the circumstances that had rendered that earlier statement inadmissible had been dispelled. R. 43-45. A motion to suppress preserves the issue for review on appeal. Newsome v. State, 570 So.2d 703, 716 (Ala.Cr.App.1989) ("absent a timely objection or motion to suppress at trial, this court may not consider these issues on appeal.").

On April 28, 1995, a hearing was held on Pardue's motion to suppress. On May 15, 1995, the trial court denied the motion, holding that Pardue's sixth amendment right to counsel had not attached when he gave the May 25, 1973, statement and, even if it had attached, there was no evidence that Pardue had had an attorney on May 25, 1973, or that he had requested one; and that the State had proven that Pardue had been advised of his Miranda rights before making the statement and that it was voluntary. The court also noted that Pardue did not sound coerced or mistreated on the tape-recorded statement, and that former assistant district attorney Willis Holloway, who was present during the May 25, 1973, interrogation, testified that he did not recall seeing anything to indicate that Pardue was mistreated or coerced while he was making the statement. R. 237-38. Based on the testimony presented from portions of the 1973 Baldwin County trial for the murder of Rider, the testimony from the 1995 trial for the murder of Hodges and the Alabama Supreme Court's ruling in Ex parte Pardue, supra, we find this ruling to be reversible error.

On the morning of May 22, 1973, at the request of the Saraland Police Department, Pardue voluntarily went to the Saraland police station to be questioned about the murders of Hodges, White, and Rider. Officer William James Pierce of the Chickasaw Police Department testified that Pardue telephoned him at 7:30 a.m. on May 22, 1973, and asked him if he knew why the Saraland police wanted to talk to him. Pierce said that he told Pardue to go talk to the Saraland police. Pierce testified that he went to the Saraland Police Department on the afternoon of May 22, 1973, to see Pardue. He stated that when he arrived Pardue was "surrounded by about five or six officers in an office." R. 475. He said that he recognized Saraland Chief of Police Frank Pridgen, and Saraland police officers Frank Mann, Cookie Estes, and William Travis, and Bobby Stewart of Baldwin County. He stated that when he started to walk into the office "the door was shut in [his] face" (R. 475) and that he did not see Pardue that day. The same day Pardue's grandmother, with whom Pardue lived, telephoned David Barnett, an attorney, and asked him to go to the Saraland jail to find out why the police wanted to see Pardue and why he had not returned home. Barnett had previously represented Pardue on another criminal charge. Barnett went to the jail and discovered that Pardue was being questioned about the murders. He stated that a lot of people were at the jail. He remembers telling Chief Pridgen, Lt. Mann, Sgt. Creekmore, and Bobby Stewart from the Baldwin County Sheriff's office, who were standing together in a group, that he was Pardue's lawyer and that he wanted to talk to Pardue. R. 797-98. Barnett stated, "It wasn't a real pleasant scene.... [I]t was pretty tense.... [I]t was somewhat confrontational.... [E]verybody [was] up around me.... [T]hey weren't yelling at me or anything, but it was like 'No, you're not going to talk to [Pardue].' " R. 800-01. Barnett said that one of the group told him that he needed to bring a letter from Pardue's family confirming that he was Pardue's attorney. Barnett told them "I'm his lawyer, I've been hired by the family, I want to talk to him. I don't want you to talk to him. And [Chief Pridgen] just was, like, 'No.' " R. 801. Barnett stated that he wasn't going to argue with "a whole raft of police" and that that was the end of it for the moment.

Bobby Stewart, the chief investigator for the Baldwin County Sheriff's Department, was present at the Saraland jail during Pardue's detention; he was investigating the Rider murder. He testified that he heard Barnett tell the officers not to interrogate Pardue without counsel being present. C.R. 51. Stewart also testified that he knew that on May 23, 1973, Pardue was represented by Chandler Stanard. At some point Pardue telephoned Stanard and Stanard arrived at the Saraland jail on the afternoon of May 23, 1973. C.R. 54. Stewart testified that he heard Stanard tell the officers holding Pardue in custody that they were not to take Pardue's statement unless Stanard was present. According to Stewart, the officers continued to question Pardue without calling Stanard. C.R. 62-63. At approximately 8:30 p.m. on May 23, 1973, Stewart administered Miranda warnings to Pardue and obtained a statement that was later used by the prosecution to convict Pardue for Rider's murder. C.R. 56. This conviction was overturned by the Alabama Supreme Court in Ex parte Pardue, on the basis that the May 23, 1973, statement was not voluntary.

The statement that is the subject of this appeal is the statement Pardue made two days after statement found to be involuntary in Ex parte Pardue, i.e. on May 25, 1973. Willis Holloway, assistant district attorney for Mobile County, testified that on the night of May 25, 1973, he was sent to Saraland to represent the State at a hearing. It was not uncommon for court to be held at night at the time in Saraland. When he arrived, he went into the chief of police's office. In the office were Investigator Travis from the Mobile County Sheriff's Department, Investigator Stewart from the Baldwin County Sheriff's Department, Chief Pridgen of the Saraland Police Department, Lt. Frank Mann, Sgt. Jack Creekmore of the Saraland Police Department, and Pardue. R. 670. Holloway stated that he had merely wandered into the police station and that he was surprised to find Pardue there. Holloway...