Smith v. State

• Decision Date: 30 September 1992
• Docket Number: CR-91-379
• Citation: 623 So.2d 369
• Parties: Antonio Tevereus SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 369

623 So.2d 369

Antonio Tevereus SMITH v. STATE.

CR-91-379.

Court of Criminal Appeals of Alabama.

Sept. 30, 1992.

Rehearing Denied Nov. 13, 1992.

Certiorari Quashed June 25, 1993

Alabama Supreme Court 1920354.

James C. McInturff, Birmingham, for appellant.

James H. Evans, Atty. Gen., and David Bjurberg, Asst. Atty. Gen., for appellee.

TAYLOR, Judge.

The appellant, Antonio Tevereus Smith, ¹ was convicted of murder, attempted murder, shooting into an occupied dwelling and receiving stolen property in the third degree. He was sentenced to respective terms of 25 years, 20 years, 3 years, and 3 years. The 25-year and the 20-year terms were to run concurrently, and the 3-year terms were to run consecutively.

As regards "time standards", this case exemplifies a dilemma which is encountered by appellate courts. Although the notice of appeal was filed on November 22, 1991, the completed record was not filed until May 15, 1992. The last brief was filed August 7, 1992, and to comply with the American Bar Association time standard of 280 days from notice of appeal to opinion, this opinion should have been released by August 24, 1992. The earliest date we could release this case after submission was September 30, 1992, beyond the date to meet the time standards.

The events that are the subject of this case and appeal occurred between 12:00 a.m. and 1:00 a.m. on the morning of August 22, 1990. The state's evidence tended to show that sometime during the evening of August 21, Ernestine Mason's car, a 1980 green four-door Buick Century, was stolen.

Prior to midnight on the evening of August 21, 1990, several people had gathered on the front porch of Bobby Crim's house on North 20th Street in Birmingham. Traci Miller had dozed off and was awakened around midnight by a loud explosion. She looked down and saw that she and Eric Goree, the victim, were both covered with blood and glass. Miller had been hit by shotgun pellets in the right arm, left hand, and rib cage. Goree had been hit by pellets all over his body. Both Miller and Goree were taken to a local hospital, where Goree later died as a result of his wounds. Miller was treated and released.

Crim testified that between 12:30 a.m. and 12:50 a.m. he saw a green four-door car pull up in front of his house and stop. He saw a shotgun pointed out of the rear passenger side window and another gun appeared from the front passenger side window. Both weapons were fired in the direction of his house.

Shortly after the shooting, police were called and a description of the car was broadcast over the police radio. Officers Jerome Green and Frederick Alexander, of the Birmingham Police Department, attempted to stop a car occupied by three black males and matching the description of the car broadcast over the radio as he was proceeding to the scene of the shooting. He saw the car make an illegal lane change, and he pulled behind the car and turned on his flashing lights. The car sped away. Green gave chase for several blocks until it stopped in an alley. Three people jumped from the car and started running from the scene. The appellant was apprehended about 10 blocks from the scene of the shooting by Officer Danny Wynn of the Birmingham Police Department, who was also on the lookout for the suspects. Officer Green found a sawed-off shotgun and a .22 caliber rifle beside the abandoned car which was found to be the car that had been stolen earlier. A fingerprint of the appellant's was also found on the stolen car.

Doris Chilles testified that between 12:30 a.m. and 1:00 a.m. on the morning of August 22, 1990, she was awakened by a loud blast. She discovered that several shots had been fired into her house, where she and her two sons, Ed and James Harris, had been sleeping. Chilles stated that pellets were all over the house.

Demetrius Sanders and David Starks were with the appellant on the night of the shooting. Demetrius Sanders testified that the appellant and Starks picked him up at his girlfriend's house in a green four-door car. They proceeded to Sanders house, where he obtained a .20 gauge shotgun and .22 caliber rifle. The shotgun belonged to the appellant, but he kept it at Sander's house. The three were riding around, with Sanders driving, when they drove to the Druid Hills area and saw several people gathered on the porch of one of the houses. Sanders thought that one of the men on the porch was an individual with whom he had earlier that day, in the appellant's presence, had an altercation. Sanders passed the house, turned around, and stopped in front of Crim's house. The appellant fired his shotgun once from the rear passenger window, and Starks fired his rifle about four times from the front passenger side. They sped away and were heading towards Sanders's house when they spotted Ed Harris's house. Both Starks and the appellant fired into Ed Harris's house. Shortly thereafter the car was spotted by police, and the appellant was apprehended.

The appellant testified in his own behalf at trial and stated that he and Starks found the stolen Buick automobile at Evergreen Bottom, in Birmingham. He knew that the car was stolen. They both drove over to get Sanders and proceeded to drive around. Smith stated that he fired the gun into a house next to Starks's that he thought was vacant. After this they drove around the Druid Hills area where they stopped in front of Crim's house. He fired his shotgun once at Crim's house and Starks also fired his rifle. Smith testified that he did not intend to kill anyone.

I

The appellant contends that the trial court should not have allowed his statement to be received into evidence because the police did not comply with Rule 11(A), A.R.Juv.P.

According to Rule 11(A), A.R.Juv.P. a child who is taken into custody must not only be informed of his MIRANDA, ² rights but he must also be informed that he has the right to communicate with his parents or guardian and that "if necessary, reasonable means will be provided for him to do so."

The evidence at the suppression hearing showed that the appellant was arrested and was brought to the police station at approximately 2:00 a.m. Officer Frederick Alexander, of the Birmingham Police Department, who read the appellant his juvenile rights stated that after he read those rights he asked the appellant if there was anyone he wished to speak to. The appellant told Alexander that he would like to talk with his grandmother. Alexander, when pressed on cross-examination, stated that before calling the appellant's grandmother he did ask the appellant about the stolen car. Consequently, after the appellant expressed his desire to talk with his grandmother, the police continued to question him about the incident. Several hours later, the appellant was again questioned. Initially, we were concerned about this second questioning of the appellant. However, upon further examination of the record, we conclude that the first questioning violated the appellant's rights.

All extra-judicial statements are deemed involuntary. Mitchell v. State, 508 So.2d 1196 (Ala.Cr.App.1986). Before an accused's confession can be received into evidence, the state must show that the statement was made voluntarily and that the suspect was read and that he understood his Miranda rights. Whitlow v. State, 509 So.2d 252 (Ala.Cr.App.1987); Malone v. State, 452 So.2d 1386 (Ala.Cr.App.1984). Here, because the individual was a juvenile, an additional step must be followed. The state must also show that the juvenile was told that he had the right to communicate with his parent or guardian. Rule 11(A), A.R.Juv.P.

The appellant was questioned after he exercised his right and requested to speak to his grandmother before answering questions, a right that this court has recently determined to be the equivalent of an adult's requesting to speak to his attorney. E.C. v. State, 623 So.2d 364 (Ala.Cr.App.1992). This right was violated by the authorities when they continued to question the juvenile. The statement made to the police was therefore due to be suppressed. While a juvenile may waive the right to talk to a parent or guardian, W.T.K. v. State, 598 So.2d 33 (Ala.Cr.App.1992), there is no indication that the appellant made such a waiver in this case.

In some limited instances, receipt into evidence of an illegally obtained confession may be considered harmless error. The United States Supreme Court has applied the harmless error doctrine to confessions obtained in violation of Miranda and to coerced confessions. Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991); Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972). Receipt of an illegally obtained confession is harmless if the court can find, based on the circumstances of the case, that admittance of the confession was harmless "beyond a reasonable doubt." Fulminante; Milton. This harmless error doctrine was defined in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The United States Supreme Court stated:

"In fashioning a harmless-constitutional-error rule, we must recognize that harmless-error rules can work very unfair and mischievous results when, for example, highly important and persuasive evidence or argument, though legally forbidden, finds its way into a trial in which the question of guilt or innocence is a close one. ....

"... We prefer the approach of this Court in deciding what was harmless error in our recent case of Fahy v. State of Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 [ (1965) ]. There we said: 'The question is whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.' Id., at 86-87, 84 S.Ct. at 230. ... Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that...