Phelps v. State, 3 Div. 526

CourtAlabama Court of Criminal Appeals
Writing for the CourtBOWEN
Citation435 So.2d 158
PartiesDavid Wilson PHELPS v. STATE.
Docket Number3 Div. 526
Decision Date29 March 1983

William W. Gobrecht of Skinner & Gobrecht, Montgomery, for appellant.

Charles A. Graddick, Atty. Gen., and Helen P. Nelson, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

The defendant was indicted and convicted for the murder of his twenty month old stepson, James Allen Weaver, Jr., "by hitting or kicking him with his hand or foot." Alabama Code Section 13A-6-2 (1975). Sentence was life imprisonment. Three issues are raised on appeal.


The defendant argues that his confession was inadmissible because he was denied the effective assistance of counsel in that counsel failed to give him "even the most rudimentary legal advice."

After the defendant had choked, assaulted and abused his stepson on the morning of August 24, 1981, he telephoned his wife at work. She returned home and an ambulance was called. The child died later that day on the operating table at Jackson Hospital.

On August 28th, the day after the funeral, Montgomery Police Officer Jerry Vaillancourt went to the defendant's residence and informed the defendant and his wife, Mrs. Gayle Phelps, that he needed to talk with them at police headquarters. The Phelpses agreed to meet with Officer Vaillancourt at his office.

After the officer left, Mrs. Phelps telephoned Attorney Edward Parker who was representing both her and the defendant in regaining the custody of Mrs. Phelps' daughter, Kristie. The Department of Pensions and Security had removed Kristie from their custody, apparently because the defendant had dislocated her hip "by yanking the child in the car." When Jamie was killed, Kristie was in the hospital recovering.

The defendant and his wife arrived at police headquarters but were not questioned because they were waiting on their attorney. Attorney Parker arrived around 8:30 a.m. Officer Vaillancourt then advised the defendant and Mrs. Phelps of their Miranda rights 1 in the presence of the attorney. The defendant and his wife executed written waivers at 8:47 a.m.

Only then did Vaillancourt inform them that "this was a homicide investigation." At that point, Parker "stopped everything" and talked privately with the police. After Vaillancourt told Parker why he wanted the statements, Parker said that he was representing both the defendant and his wife and they would not make a statement.

Parker called another member of his law firm, Sterling Culpepper. The two attorneys decided that they needed to discuss the matter before agreeing to represent both the defendant and his wife in this criminal matter. Parker told the police that he "didn't know if we're going to represent them at all on any criminal charges" and that he needed to "discuss this with Sterling Culpepper because he has experience in these matters."

Parker told the defendant and his wife that they were "being investigated with the most serious of offenses" and that they needed to discuss the matter. "With that understanding", the police let the defendant and his wife go with Parker to his office.

The defendant testified that, when Parker returned from talking with the police, Parker said that "they were gonna make an arrest if one of you didn't confess." Parker denied making such a statement 2.

Since Parker had never practiced criminal law, he told Culpepper that he "would rather not represent either one of them." Culpepper had represented Mrs. Phelps "on the divorce matter" and in "this custody fight" and felt that they needed to talk to Mrs. Phelps before making any decision.

After both attorneys had discussed the infant's death with Mrs. Phelps, they determined that they could only represent her in the criminal matter. They decided that they could not represent both her and the defendant. Parker testified that to represent the defendant also would constitute "a definite conflict of interest. That they were just diametrically opposed, there would be no way possible."

Culpepper's secretary had been talking with the defendant and his wife while they were waiting on the attorneys. Before the attorneys told the defendant that they could not represent him, the secretary told the attorneys that the defendant had stated that he wanted to confess. After the attorneys told the defendant that they could not represent him, the defendant again stated that he wanted to make a statement. Parker testified:

"We then walked into the conference room without Gayle, Sterling and myself, Sterling speaking. Sterling said: We do not represent you, David. We cannot represent you on any criminal charges that might be brought. We can only represent Gayle. Your interests are diametrically opposed. There's a conflict here. We don't give you any advice whatsoever except to tell you that you should, indeed, get representation and employ an attorney. He then, very softly, said: Well, I would like to say--He didn't say confess, I don't believe. He said I would like to say I did it--or something to that effect. Sterling responded and said: Well, I don't give you any advice to do that one way or the other, but as a citizen I feel that you are doing the right thing. Then he asked to be allowed to make a confession to the police and we said, you know you need an attorney and he said well, call the policeman for me, but I prefer that you have plainclothesmen--the detectives we had seen earlier that day. We called them. They came and picked David up."

Officer Vaillancourt picked up the defendant at the lawyer's office and took him to police headquarters. The defendant was readvised of his Miranda rights and signed a written waiver at 11:10 a.m.

In his statement, the defendant admitted hitting, choking and almost drowning Jamie on the morning of the day the infant was killed.

At the hearing on the motion to suppress the confession, the trial judge framed the specific issue: "The question is did the lawyer collaborate with the police in order to somehow force him into giving a statement?" On appeal, the defendant acknowledges that "there is no evidence that the detectives were part and parcel of the eventual decision made by the defendant." However, he argues that it is "painfully apparent" that the lawyers "sacrificed" their former client "so that the client they elected to continue to represent might remain free." The defendant contends that his attorneys were ethically bound to "strongly advise if not practically insist" that it would be against his interests to make a confession.

The record is clear, and there is no assertion to the contrary, that the defendant was given all the warnings required by Miranda, supra. It is also clear and uncontradicted that the defendant never invoked his right to counsel.

Erroneous, incomplete, or poor advice or consultation regarding an accused's pretrial silence may demonstrate and support a finding of inadequate assistance of counsel. Annot. 7 A.L.R.4th 180, Section 20 (1981). However, the mere fact that counsel advises the accused to make a statement to the police does not constitute inadequate representation as a matter of law. See 7 A.L.R.4th at Section 19.

The fact that a police officer tells the accused that it would be better to make a statement or to tell the truth does not constitute an improper inducement. Eakes v. State, 387 So.2d 855 (Ala.Cr.App.1978); Bennett v. State, 409 So.2d 936 (Ala.Cr.App.1981). Attorney Culpepper did tell the defendant that he felt as a citizen the defendant was doing the right thing. He said this after the defendant had already decided to make a statement. Other than the statement itself, there was no evidence that Culpepper's remark induced or contributed to inducing the defendant's confession. There was no evidence that the defendant relied upon Culpepper's personal opinion in deciding to confess.

This remark must also be considered in context. Along with this remark Culpepper also told the defendant that he could not represent him, that he could not give him any legal advice, and that he needed an attorney. After Culpepper told the defendant that he could neither represent him nor give him any legal advice, he advised the defendant that he needed a lawyer in direct response to the defendant's remark that he was going to make a statement. In view of these circumstances, we do not think that Culpepper's failure to further inform the defendant that he should or should not make any statement constitutes ineffective assistance of counsel. "Accused is entitled to counsel to aid him in his defense, but not to prevent voluntary action on his part." 23 C.J.S. Criminal Law, Section 979(6) (1961).

Since the evidence defeats any claim of complicity between the attorneys and the police, no legitimate contention can be advanced that the attorneys were acting as agents for the police in inducing a confession from the defendant. Again, we emphasize that, when the defendant told the attorneys that he wanted to make a statement, they told him that he needed an attorney. If the defendant had relied upon the advice of the attorneys he would have consulted a lawyer before making a statement. This offers further support for the finding that the defendant's decision to confess was an independent and voluntary decision.

The defendant testified that he decided to confess in order to keep his wife from going to jail after Parker told them that they both would go to jail unless one of them confessed. Since Parker denied making that remark, the issue hinged on the credibility of the witnesses which was for the trial judge. Morgan v. State, 363 So.2d 1013, 1015 (Ala.Cr.App.1978). "(U)nder a totality of the circumstances approach, an accused's subsequent account of his prior subjective mental impressions cannot be considered the sole determinative factor." United States v. Robertson, 582 F.2d 1356 (5th Cir.1978).

The fact that the...

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