Robinson v. State

• Decision Date: 21 September 1990
• Docket Number: 6 Div. 8
• Parties: Tyrone Winston ROBINSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 910

574 So.2d 910

Tyrone Winston ROBINSON v. STATE.

6 Div. 8.

Court of Criminal Appeals of Alabama.

Sept. 21, 1990.

Rehearing Denied Nov. 16, 1990.

Certiorari Denied Jan. 11, 1991

Alabama Supreme Court 1900365.

Richard S. Jaffe, Birmingham, for appellant.

Don Siegelman, Atty. Gen., and Martha Gail Ingram, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Tyrone Winston Robinson was charged in a two-count indictment with the murder of his wife, Lucinda Robinson, and the murder of Kenneth Simpson. A jury found him guilty as charged in the death of Lucinda Robinson, but convicted him of the lesser included offense of manslaughter in the death of Kenneth Simpson. Robinson was subsequently sentenced to 30 years' imprisonment on the murder conviction and to 10 year's imprisonment on the manslaughter conviction, with the sentences to run consecutively.

I

Robinson asserts that statements which he made at the scene in response to police questioning were inadmissible because he was not advised of his rights under Miranda ¹ prior to making those statements.

Shortly after 11:00 p.m. on the night of March 17, 1988, four Birmingham police officers responded to a radio call of "burglary in progress" or "burglar shot" at the defendant's residence. Officer DeWayne Stanley and his partner arrived at the house almost simultaneously with Officers Tommy Tanner and Phillip Holbert. The four officers cautiously approached the front door, which was open slightly. Once inside, the officers found a black male lying on the floor just inside the door. The defendant "came up the stairs with a badge in his hand" and said, "I'm a deputy, and I shot him." One officer also heard him say, "I don't know what he was doing in my house." Officer Tanner asked the defendant where the gun was, and the defendant lead him into the kitchen, where Tanner observed a gun. While in the kitchen with Tanner, the defendant said his wife was downstairs. Some 20 or 30 seconds later the defendant told Tanner that "his wife had been shot also." The paramedics had arrived by this time, and Tanner sent someone downstairs to check on the defendant's wife.

Meanwhile, Officer Holbert was attending Kenneth Simpson, the man on the floor. When Holbert entered the house, Simpson was struggling to get up. Holbert patted him down, then asked him his name and age. Holbert heard someone say, "There's a lady downstairs" and asked Simpson if he knew who this lady was. Simpson replied that she was his sister-in-law. Simpson was treated by paramedics at the scene, then transported to University Hospital where he died the next morning at 5:32 a.m.

The defendant's wife, Lucinda Robinson, was dead when the paramedics reached her. One of the officers relayed this information to Officer Tanner. At that time, Tanner and the defendant moved from the kitchen to the dining room. The defendant then said that he would like to check on his child and went upstairs alone.

Prior to making their report and leaving the scene, Officers Stanley and Tanner went upstairs where Stanley asked the defendant "to go over the story just to make sure we had it right." Stanley testified that, at this time, the defendant said:

"[H]im and his wife was downstairs washing. And he started up the basement steps and he heard some footsteps coming down the main stairs upstairs. He said he could tell by the weight that it wasn't his daughter. So he run to the kitchen to get his gun. And as he was coming back into the hall he said he saw a black flash run from the main stairs towards the front door. He had hollered halt, and the guy didn't stop, so he shot. He said he didn't know how many times he shot. At that time his wife was coming up the stairs and he didn't know it. And she said, oh, you shot Ken. And it startled him, and he rolled around, and the gun went off."

It is this statement that the defendant contends was erroneously admitted. Clearly, no Miranda warnings were given before this statement was obtained. However, "Miranda does not apply to traditional investigatory functions such as general on-the-scene questioning." Smith v. State, 515 So.2d 149, 152 (Ala.Cr.App.1987). Accord, Bui v. State, 551 So.2d 1094, 1108 (Ala.Cr.App.1988), affirmed, 551 So.2d 1125 (Ala.1989); Hubbard v. State, 500 So.2d 1204, 1224 (Ala.Cr.App.), affirmed, 500 So.2d 1231 (Ala.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987).

"The safeguards set out by the United States Supreme Court in [Miranda ] are only applicable when an individual is subjected to custodial interrogation. 'By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.' Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612."

Primm v. State, 473 So.2d 1149, 1158 (Ala.Cr.App.1985). "Although the circumstances of each case must certainly influence a determination of whether a suspect is 'in custody' for purposes of receiving Miranda protection, the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983). An arrest occurs when a reasonable person in the defendant's position would believe that he is not free to leave. Williams v. State, 527 So.2d 764, 769 (Ala.Cr.App.1987).

There is nothing in the record before us to indicate that the defendant was "in custody" at the time Officer Stanley asked him to "go over the story." The defendant was obviously not under formal arrest at this time. In fact, during cross-examination of Officer Stanley, defense counsel asked, "You didn't charge him or place him under arrest, Tyrone Robinson, did you?" and Stanley replied that he did not. Compare Ex parte McCree, 554 So.2d 336, 338 (Ala.1988) (investigator arrived at scene of shooting and placed defendant under arrest having "no idea whether the shooting was an accident or a criminal act"). Nor is there any indication that the defendant's movements had been unduly restricted--he was clearly permitted to go upstairs alone to check on his daughter when he expressed a desire to do so. While the house had been "secured," this was simply to prevent the entry of extraneous or curious persons and the loss of evidence.

It must be remembered that this was the scene of a reported burglary and shooting. While several officers were present, there was no evidence that any of the officers displayed a weapon, touched the defendant in any way, or used any language or a tone of voice that would have required compliance with their requests. "In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure [or arrest] of that person." United States v. Mendenhall, 446 U.S. 544, 555, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). Under the circumstances of this case, we do not find that a reasonable person in the defendant's position would have believed that he was not free to leave. Clearly, the statement complained of in this issue was nothing more than a response to general on-the-scene questioning and no Miranda warnings were required.

II

Robinson contends that the tape-recorded statement he gave on the night of the shootings should have been suppressed because it was obtained after he had invoked his right to counsel.

Sometime after midnight on the night of the shootings, the defendant was transported to a police station where he gave a statement. The tape recording of this statement was apparently transcribed by a police department secretary, although this transcription was not offered at trial. Instead, the tape of the statement was introduced and played before the jury. After the record had been filed with this Court, but prior to the actual submission of this appeal, Robinson filed a motion under Rule 10(f), A.R.A.P., seeking to have the statement transcribed and that transcript made a part of the record on appeal. The State joined in this motion, asserting that "[i]t will be to the benefit of all concerned, including this Court, for [the transcribed statement] to be a part of the record." These motions were granted, and the transcript of the statement is part of the record before this Court.

At the beginning of the transcript, there is a discussion between Sergeant Reynolds and the defendant regarding the Miranda rights. Many of the statements made by the defendant, and some of those by Sergeant Reynolds, are designated only as "inaudible." ² The defendant testified at the suppression hearing that he "mentioned something about an attorney" to Reynolds "several times." When asked specifically what he had said about a lawyer, the defendant stated, "I believe I said can I talk to one, or can I call a lawyer or talk to one or something." Reynolds testified that he "unequivocally" did not "recall [the defendant] at any point in any conversation saying those words, 'I want to have a lawyer.' " However, he stated that the defendant said "something about, well, if I'm going to be charged with anything do I need an attorney" and "I don't feel like I've done anything wrong. But, you know, do you think I need an attorney or something to that effect." Reynolds also acknowledged that, at the preliminary hearing, he had testified that, while he did not recall "those specific words," the defendant could have said "if I'm going to be charged with anything, I want to have a lawyer here."

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court established that, under the Fifth Amendment, one has a right to counsel during custodial interrogation. Once the right to counsel has been invoked, police officers may not ask the accused any further questions regarding an alleged crime until the accused has been given an opportunity to...