O'Shields v. State

• Citation: 689 So.2d 227
• Decision Date: 27 September 1996
• Docket Number: CR-94-2327
• Parties: Michael O'SHIELDS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 227

689 So.2d 227

Michael O'SHIELDS v. STATE.

CR-94-2327.

Court of Criminal Appeals of Alabama.

Sept. 27, 1996.

Rehearings Denied Nov. 22, 1996.

Certiorari Denied Feb. 21, 1997

Alabama Supreme Court 1960343.

Blanchard McLeod, Selma, and Thomas Treese, Selma, for appellant.

Jeff Sessions, Atty. Gen., and Jean Therkelsen, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, Michael O'Shields, appeals his conviction for murder, a violation of § 13A-6-2, Code of Alabama 1975. He was sentenced to life in the penitentiary.

The state's evidence tended to show that in March 1990 the appellant murdered his ex-wife, Ruby Oliver. Betty Hemphill testified that she had attended Riley College with Ruby in 1990. She stated that one Wednesday in March 1990 the appellant picked Ruby up at school around noon and that she did not see the victim after that day.

Michael Alston Nichols, a friend of the appellant's, testified that one afternoon in March 1990 he went to the appellant's trailer and the appellant told him that he had killed Ruby. Nichols further testified that at the time he did not believe what the appellant was telling him. The appellant then directed Nichols to his bedroom where, Nichols said, the appellant had Ruby's body wrapped in a blanket. Nichols testified that he told the appellant that he would not telephone the police and he then left. Nichols stated that the appellant came to his house with Ruby's body about 10:30 p.m. that evening to get some cement blocks. He said that he accompanied the appellant when he dumped Ruby's body with cement blocks into the Alabama River. Ruby's body was never recovered.

O'Shields, in his confession, stated that he picked Ruby up at Riley College one day in March 1990 so that Ruby could get some things from his trailer. They got into a heated discussion, O'Shields said, concerning her relationship with someone else. He stated that Ruby told him that she was in love with the other person and that she did not care for him anymore. O'Shields further confessed that Ruby told him that he "did nothing" for her sexually. O'Shields stated that he "lost it", knocked her down, choked her to death, and then threw her body in the Alabama River.

David O'Shields, the appellant's uncle, testified that the appellant, who was white, had told him that he had strangled his ex-wife because she was dating a black man and had thrown her body in the river.

Mike Kynard, a friend of the appellant's, testified regarding three conversations he had with O'Shields. Kynard testified that in 1990 O'Shields told him that he had threatened Ruby after learning that she was dating a black man, and that she had left town. A month later, Kynard stated, O'Shields told him that he had ties to the Mafia and that he had traded someone in the Mafia a Thunderbird automobile to have Ruby killed. Kynard testified that two weeks after that conversation O'Shields confessed to him that he had killed Ruby and had thrown her body in a river.

I

The appellant contends that the trial court erred by denying his motion to suppress his confession. Specifically, he claims that he had invoked his right to counsel before giving the statement, that counsel was provided, and that his confession was coerced.

The record reflects that in May 1994 the appellant was in custody in the Montgomery County jail on an unrelated capital murder charge. Officer Art Freine, of the Selma Police Department, testified at the hearing on the motion to suppress that he and Officer Joe Harrell went to the Montgomery Police Department on May 12, 1994, to question the appellant about Ruby Oliver's disappearance.

Freine testified that the morning interview was conducted primarily by Officer Joe Harrell. Freine stated that he was present during most of the interview, but said that he did leave the room several times. Freine stated that he did recall the appellant saying "I think I may need a lawyer" during the morning interview. Freine testified that Officer Harrell continued the interview after the appellant invoked his right to counsel. Harrell testified that he probably should have ceased questioning at that time but he did not.

Officer D.H. Carmichael, a Montgomery Police Officer, testified that he interrupted the morning interview to take the appellant to the jail for his lunch. Carmichael stated that he then went to lunch with Harrell and Freine. After returning from lunch, Carmichael asked the appellant if he wanted to talk anymore with Freine or Harrell. He said that he told the appellant, "if you want to, fine; if you don't, fine." The appellant then confessed to Freine and Carmichael.

The trial court found that the appellant had invoked his right to counsel during the morning interview and correctly suppressed the morning statement. The trial court, however, found that the appellant initiated the afternoon interview and it incorrectly received into evidence the appellant's confession.

The United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), addressed this issue, stating:

"[W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, ... having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police."

451 U.S. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386 (1981). (Emphasis added.)

Once a suspect invokes the right to counsel, the suspect cannot be subjected to further interrogation "unless the suspect himself initiates dialogue with the authorities." Wyrick v. Fields, 459 U.S. 42, 46, 103 S.Ct. 394, 395, 74 L.Ed.2d 214 (1982). "When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney." Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489, 498 (1990).

In Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the United States Supreme Court defined "initiate" as that term was used in Edwards. The Court stated:

"While we doubt that it would be desirable to build a superstructure of legal refinements around the word 'initiate' in this context, there are undoubtedly situations where a bare inquiry by either a defendant or by a police officer should not be held to 'initiate' any inquiries, such as a request for a drink of water or a request to use a telephone, that are so routine that they cannot be fairly said to represent a desire on the part of an accused to open up a more generalized discussion relating directly or indirectly to the investigation."

462 U.S. at 1045-46, 103 S.Ct. at 2835, 77 L.Ed.2d at 412.

The Court, in Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100 L.Ed.2d 704 (1988), expounded upon Edwards and stated:

"The rule of the Edwards case came as a corollary to Miranda's admonition that '[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present.' 384 U.S. at 474, 86 S.Ct. at 1627-1628. In such an instance, we had concluded in Miranda, '[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.' Id., at 474, 86 S.Ct., at 1628. In Edwards, we 'reconfirm[ed] these views and, to lend them substance, we emphasize[d] that it is inconsistent with Miranda and its progeny for the authorities, at their instance, to reinterrogate an accused in custody if he has clearly asserted his right to counsel.' 451 U.S., at 485, 101 S.Ct., at 1885. We concluded that reinterrogation may only occur if 'the accused himself initiates further communication, exchanges, or conversations with the police.' Ibid. Thus, the prophylactic protections that the Miranda warnings provide to counteract the 'inherently compelling pressures' of custodial interrogation and to 'permit a full opportunity to exercise the privilege against self-incrimination,' 384 U.S., at 467, 86 S.Ct., at 1624, are implemented by the application of the Edwards corollary that if the suspect believes that he is not capable of undergoing such questioning without advice of counsel, then it is presumed that any subsequent waiver that has come at the authorities' behest, and not at the suspect's own instigation, is itself the product of the 'inherently compelling pressures' and not the purely voluntary choice of the suspect."

486 U.S. at 680-81, 108 S.Ct. at 2097-98, 100 L.Ed.2d at 712-13 (1988).

Alabama courts have applied Edwards and have held that statements made in violation of the appellant's right to counsel are inadmissible. See Ex parte Johnson, 522 So.2d 234 (Ala.1988). This court addressed this same issue in Arthur v. State, 575 So.2d 1165 (Ala.Cr.App.1990), cert. denied, 575 So.2d 1191 (Ala.1991), and stated:

"[T]he prosecution ha[s] the 'heavy burden' of overcoming the presumption, which was raised by [the appellant's] request for counsel, that [he] considered himself unable to deal with the pressures of custodial interrogation without legal assistance. '[The] discomfort [with the pressures of custodial interrogation] is precisely the state of mind that Edwards presumes to persist unless the suspect himself initiates further conversation about the investigation....' Id. 486 U.S. at 684, 108 S.Ct. at 2099."

"....

"In determining that the prophylactic rule of Edwards...