Scarbrough v. State

• Decision Date: 17 January 1992
• Citation: 621 So.2d 996
• Parties: Christopher M. SCARBROUGH v. STATE. CR 90-981.
• Court: Alabama Court of Criminal Appeals

Page 996

621 So.2d 996

Christopher M. SCARBROUGH v. STATE.

CR 90-981.

Court of Criminal Appeals of Alabama.

Jan. 17, 1992.

Rehearing Denied March 13, 1992.

J. Edmund Odum, Jr., Birmingham, for appellant.

James H. Evans, Atty. Gen., and Yvonne A. Henderson, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Christopher M. Scarbrough, the appellant, was convicted of felony-murder as a lesser included offense of the capital murder of John C. Johnson for which he had been indicted. He was sentenced to life imprisonment. On this appeal from that conviction, the appellant contends that his confession should have been suppressed because there was no probable cause for his arrest and because his confession was the product of an illegal pretextual arrest.

I.

The victim was murdered in his apartment on January 31, 1990. The police began searching for the appellant the next day after learning that he had been seen around the apartment complex the day of the murder. On March 20, 1990, the officer in charge of the murder investigation had the appellant arrested on a misdemeanor warrant from municipal court for failing to pay a fine. That warrant had been issued in 1988. The appellant was taken to police headquarters where he confessed that he stabbed the victim in an effort to defend himself from the homosexual advances of the victim.

The trial judge termed the use of the municipal warrant to arrest the appellant a "guise" and berated the prosecutor and, to a lesser extent, the testifying officer, even though there had been no attempt by either to mislead the judge about the nature and purpose of the arrest. The trial judge stated:

"[D]on't come in here with no manipulation about they went and got a traffic warrant for traffic violation. I mean, to hunt for his man, I don't want no nothing like that brought in here to me.

"....

"It's an insult. Because the traffic warrant wasn't just for the other day, was it, for the two or three days before this happened, was it? ...

"....

"My point is, don't bring--the City sat over there for two years, and then they go and get a warrant that's been on the books two years and get in hot pursuit of this man. That's folly. And don't, you know bring that to me, because it's illogical and it just reeks of things that ought not to be in a court. I'll tell you that. You do what you wish, but if I were a lawyer, I would never do that. I've got the highest respect for the system, and the system ought not ever be manipulated.

"Here's a man, got a traffic ticket, and had it two--and he hadn't paid the fine in two years, so he becomes a suspect in a murder. And you come in here and tell me that you've got a warrant for him and that's the basis of looking for the man, when the truth is that you're looking for this man because he's a suspect. So say that.... If you've got probable cause, you don't need to go get no--take no specious conduct and go scratch up to see if I can find anything on this man and then use that. That's all I'm saying. We're here for the truth. He was looking for that man because he was a suspect, and let's just say that.... All right. Don't bring that to me no more." R. 364-66.

However, it appears that the trial judge deemed the arrest on the misdemeanor warrant ¹ legally insignificant because he found that the police had probable cause to arrest the appellant for murder. See Callahan v. State, 557 So.2d 1292, 1302-03 (Ala.Cr.App.) (initial arrest for traffic offense not invalid because there existed probable cause to arrest for murder), affirmed, 557 So.2d 1311 (Ala.1989), cert. denied, 498 U.S. 881, 111 S.Ct. 216, 112 L.Ed.2d 176 (1990). The trial judge stated:

"He [Officer Duncan] had an obligation. A police officer has got an obligation to follow reliable and trustworthy leads. And the only lead he had at that time was that this man had been there during those hours.

"....

"... Well, that's what it was. But it was a reliable one and the only one he had, and therefore he had a duty to go talk to him...."

"....

"I think I made the ruling that this traffic ticket was nothing but a guise. It's been out there two years. But that does not alter the fact that he had in his knowledge reliable, trustworthy information upon which a prudent and reasonable man would have desired to question this man as a suspect. And that's what he did.

"....

"I said that he had probable cause based on information that he had from Deputy Love and some other witnesses. The record will show that. But Deputy Love's information alone would have been sufficient, in my judgment, for a prudent and reasonable man to go question this witness. In fact, I believe I stated for this record in my judgment--and I may be in error, but that's my honest opinion--he had a duty to question this man. He was the only somebody who had been there." R. 400-01, 419-20.

We hold that the appellant's motion to suppress his confession was due to be denied. However, contrary to the findings of the trial judge, we find that there was no probable cause to arrest the appellant for the murder, and that the confession was not the fruit of an unconstitutional pretextual arrest.

II. Probable Cause to Arrest

Even though the police had an "obligation" to talk to the appellant either as a potential witness or as a suspect, they had no probable cause to arrest him for the commission of the murder.

Birmingham Police Sergeant H.F. Duncan was the investigating officer and the only witness to testify in connection with the determination of probable cause. From the testimony presented at the hearing on the motion to suppress, at trial, and from our review of Duncan's "incident/offense narratives," we conclude that Duncan was aware of the following facts before the appellant was arrested on the misdemeanor warrant: The victim was murdered sometime after 10:00 a.m. on January 31, 1990. The victim's wife discovered the body around 4:30 that afternoon. Sergeant Duncan interviewed three employees of Century Valley Apartment Complex that day. Those employees were William Love, a deputy sheriff and the night manager of the apartments; maintenance supervisor Richard Minnifield; and Teresia Stovall. He also talked to Melvin Barkum, an apartment resident. From those people he learned that the appellant was a former resident of the apartment complex; that the appellant's vehicle had been towed away from the complex the day of the homicide; that the appellant had been at the apartment complex that afternoon around 1:30 stating that he had come to see his friend, Melvin Barkum; that Mr. Barkum lived in the apartment directly above the victim's; and that an individual dressed in clothing similar to that worn by the appellant had been seen talking to the victim outside the victim's apartment between 2:30 and 3:00 p.m. Mr. Barkum had not seen the appellant since the previous Sunday and knew of no reason why the appellant would have come to see him that day.

Sergeant Duncan began his search for the appellant on February 1, 1990, the day after the homicide. He located and interviewed the appellant's wife on February 7, 1990. She told him that the appellant had been smoking cocaine during the last few months and had stolen $600 from his employer. That theft was determined to have occurred on January 30, 1990. She and the appellant had been seeing each other only sporadically and the appellant had not mentioned anything about the murder.

Sometime during the next several weeks following the homicide, the appellant's wife told Sergeant Duncan that she had told the appellant to call Officer Duncan as Duncan had requested. At trial, Duncan testified that he tried to contact the appellant "many times.... [m]ostly through his wife. I kept trying to get her to put him in touch with me, but she did not know his whereabouts." R. 490. The prosecutor represented to the trial judge that nothing the sergeant learned from the wife had any bearing on the probable cause issue. R. 380.

On two different occasions, the appellant had telephoned Duncan's office but had left no telephone number and had merely left messages that he would call back.

Duncan discovered that there was an outstanding warrant against the appellant. He testified, "I just used a computer. I checked him everywhere I could." R. 475. That warrant had been issued by the Birmingham Municipal Court in 1988 on the charge of failure to pay a fine on a conviction in municipal court for driving without a driver's license. R. 411. On March 20, Duncan had members of the Birmingham Police Department's "fugitive unit" go to the apartment of the appellant's mother and arrest the appellant on the misdemeanor warrant. From his testimony at the hearing on the motion to suppress, it appears that Duncan ordered the warrant executed the same day he discovered its existence. However, at trial Duncan testified, "Well, it was a long time after I had knowledge of [the municipal warrant], sir, before I finally resorted to that [warrant]." R. 476.

The appellant was taken into custody "without incident" on the municipal warrant and was brought to police headquarters where he was interviewed and eventually confessed to the homicide. The appellant denied any knowledge of the murder in his first statement which began at approximately 2:35 p.m. The prosecutor did not attempt to introduce that statement into evidence. The appellant was advised of his Miranda rights a second time at 5:19 p.m. R. 445. In his second statement, the appellant admitted the killing. The appellant maintained that the victim had made homosexual advances towards him, that there was a struggle when the appellant tried to escape, and that, in his panic, the appellant stabbed the victim. After his second statement, the appellant was arrested for murder. The interrogation ended at 5:44 p.m.

Although the first statement was not introduced into evidence, it appears that the appellant was fully advised of his Miranda rights before both statements....