Self v. State, 2 Div. 591

• Decision Date: 28 July 1987
• Docket Number: 2 Div. 591
• Citation: 512 So.2d 811
• Parties: James Edward SELF v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 811

512 So.2d 811

James Edward SELF v. STATE.

2 Div. 591.

Court of Criminal Appeals of Alabama.

July 28, 1987.

L. Scott Atkins, Centreville, for appellant.

Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant, James Edward Self, was found guilty of burglary in the third degree, in violation of § 13A-7-7, Code of Alabama (1975). He was sentenced to ten years' imprisonment and was ordered to pay $1,341 in restitution.

The appellant and Michael Nixon were driving around and looking for houses to break into on January 19, 1986. They pulled into the yard of a house, turned the car around, and opened the trunk. They then ran two dogs off the property, approached the house, and knocked on the door. The appellant then kicked the door open after determining that no one was present. They entered the house and took three guns, a television set, a V.C.R., a microwave oven, and some other items. They also broke into two other houses. They also took some ammunition for the guns. They drove to a place called the "Strip Pit" to shoot the guns. Thereafter, they drove to Fairfield and sold some of the items for approximately $200 to $300.

Bill Barrentine testified at trial that his house was broken into on January 19, 1986. He stated that his door was kicked in, and he described the property that was taken.

Chief Deputy Calvin C. Moreland, of the Bibb County Sheriff's Department, testified that he investigated the burglary. He testified that he first came into contact with the appellant and Nixon at the Bessemer Police Department on February 2, 1986. Moreland read the appellant his Miranda rights and taped his conversation with the appellant. The appellant confessed to the burglary in his taped statement. He signed a waiver of rights form and volunteered to ride with Moreland to Barrentine's residence in order to identify the same house. Moreland stated that the appellant was very cooperative. He indicated that he did not make the appellant any promises or offer any hope of reward or threaten or coerce him in an attempt to secure the statement. Moreland further stated that the appellant did not appear to be under the influence of drugs or alcohol.

The appellant testified, outside the hearing of the jury, that he was under the influence of drugs when he made the statement. He testified that he did not actually remember signing the waiver of rights form. He also indicated that he was not thinking clearly when he spoke to Chief Deputy Moreland. The appellant, on cross-examination, admitted that what he had told Chief Deputy Moreland on the tape was the truth. He further testified that, when he gave the statement, he was on a "depressant type drug" and was neither sick nor "out of his mind." He further stated that he understood that he was talking to Chief Deputy Moreland about the burglaries. A transcribed copy of the tape was admitted into evidence.

Michael Nixon testified that he was a friend of the appellant and participated in the burglary with him. He testified that they were intoxicated during the burglary and that, though he said he was uncertain as to what they had ingested, he believed that it was probably alcohol. Nixon testified that he was charged in juvenile court for this offense.

I

The appellant argues that the trial court erred in admitting his confession because the State failed to lay a proper predicate. However, the record clearly shows that the appellant was advised of his Miranda rights prior to giving his statement. The tape recording and the transcription thereof include the initial conversation between Chief Deputy Moreland and the appellant. The evidence indicated that Moreland read the appellant his rights and, from the record, it appears that the appellant was reading the rights along with Moreland. The appellant stated several times that he understood those rights. He further stated that he did not need any explanations of the rights and that he was signing the statement of his own free will. He further acknowledged that he had not been made any promises or threatened in any way. The record also contained the waiver of rights form signed by the appellant.

The appellant contends that he was under the influence of drugs when he made his statement and was not thinking clearly when he spoke to Moreland. However, the appellant also testified that he had understood his rights and that what he told Moreland on the tape was the truth. Chief Deputy Moreland testified that he did not make the appellant any promises and did not threaten him. He further testified that the appellant did not appear to be suffering from the effects of any drugs or alcohol or suffering from any injuries, wounds, or illnesses.

"This court has held that, where the testimony of the officer shows that the appellant was read his rights, stated that he understood those rights and that he was not being threatened, coerced nor promised anything to secure this statement, indicated that he wanted to talk and made a recorded statement, this testimony was sufficient to sustain a finding that the appellant's statement was voluntary, even though the defendant contended otherwise. See Sales v. State, 432 So.2d 560 (Ala.Crim.App.1983)."

Thompson v. State, 503 So.2d 871, 878 (Ala.Cr.App.1986), affirmed, 503 So.2d 887 (Ala.1987). See also Gholston v. State, 494 So.2d 876, 884 (Ala.Cr.App.1986); Gwynne v. State, 499 So.2d 802, 807 (Ala.Cr.App.1986).

"The voluntariness of an alleged confession is a question of law addressed to the trial court, whose ruling will not be disturbed on appeal unless it appears to be contrary to the great weight of evidence or is manifestly wrong. Tice v. State, 386 So.2d 1180 (Ala.Cr.App.), cert. denied, 386 So.2d 1187 (Ala.1980); Garrison v. State, 372 So.2d 55 (Ala.Cr.App.1979); Moore v. State, 469 So.2d 1308 (Ala.Cr.App.1985). The trial judge, in determining the voluntariness of a confession, must consider all the attendant circumstances, with the ultimate inquiry being 'whether the defendant's' rational intellect and free will were overcome at the time of his confession. Green v. State, 439 So.2d 816 (Ala.Cr.App.1983). However, in order for intoxication to render a confession inadmissible, it must be shown that the mind of the defendant was substantially impaired when the confession was made. Moore v. State, 415 So.2d 1210, 1214 (Ala.Cr.App.1982), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982), and cases cited therein. The defendant's intoxication must amount to a 'mania' which impairs the will and mind to the extent that the person confessing is unconscious of the meaning of his words; a lesser state of intoxication will not render the confession inadmissible. Boggan v. State, 455 So.2d 228 (Ala.Cr.App.1984)."

McCammon v. State, 499 So.2d 811, 815 (Ala.Cr.App.1986).

"The appellant has failed to present sufficient evidence to establish the degree of intoxication necessary to render his statement inadmissible." Hold v. State, 485 So.2d 801, 804 (Ala.Cr.App.1986). The trial court was correct in admitting the appellant's statement into evidence.

II

The appellant argues that the trial court erred by denying him youthful offender status. The case action summary reveals that the trial court ordered that "[u]pon review of petition and probation officer's report, petition for YOA [youthful offender status] is denied." The trial judge then signed the order.

"When deciding whether to grant youthful offender status, it is expected that the nature of the crime charged, along with prior convictions of the defendant, will be considered, as well as any other matters deemed relevant by the court. Clemmons v. State, 294 Ala. 746, 321 So.2d 238 (1975). No prescribed format is required. Edwards v. State, 294 Ala. 358, 317 So.2d 512 (1975). Neither is the trial court required to articulate on the record the reasons for denying youthful offender status to a defendant. Garrett v. State, 440 So.2d 1151 (Ala.Cr.App.1983). In deciding whether or not to accord youthful offender status to an accused person, the discretion of the trial judge is virtually absolute. Morgan v. State, 363 So.2d 1013 (Ala.Cr.App.1978)."

Goolsby v. State, 492 So.2d 635, 636 (Ala.Cr.App.1986).

"A trial court's order denying youthful offender treatment, 'should reflect that some investigation, examination or inquiry was had of the youth before the request was denied.' Shula v. State, 465 So.2d 448, 451 (Ala.Cr.App.1984), reversed on other grounds, Ex parte Shula, 465 So.2d 452 (Ala.1985) (citing Watkins v. State, 357 So.2d 156 (Ala.Cr.App.1977), cert. denied, 357 So.2d 161 (Ala.1978))." Talley v. State, [Ms. 3 Div. 450, February 24, 1987] 504 So.2d 741 (Ala.Cr.App.1987). " 'Here, it does not affirmatively appear that the decision of the trial judge was arbitrary or made without some examination or investigation. The record provides no basis for overturning the denial of the defendant's request for youthful offender status. Carthon v. State, 419 So.2d 293, 295 (Ala.Cr.App.1982).' Garrett v. State, 440 So.2d 1151, 1153 (Ala.Cr.App.1983)." Herriman v. State, 504 So.2d 353, 357 (Ala.Cr.App.1987).

III

The appellant argues that he was denied effective assistance of counsel. He states in his argument on appeal, "Trial counsel has insisted that this issue be raised, and for appellate purposes, it is defendant's position that trial counsel's performance failed to meet the objective standards of reasonableness." The appellant cites no specific instances in which his trial counsel's representation was unreasonable or in any sense ineffective. Thus, the appellant has failed to meet his burden under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

The Alabama Supreme Court in Ex parte Baldwin, 456 So.2d 129 (Ala.1984), affirmed, 472 U.S. 372, 105 S.Ct. 2727, 86 L.Ed.2d 300 (1985), addressed the proof required to establish a case of ineffective...