State v. McDevitt

• Decision Date: 12 November 1985
• Docket Number: 8 Div. 302
• Citation: 484 So.2d 543
• Parties: STATE of Alabama v. Gregg Daniel McDEVITT.
• Court: Alabama Court of Criminal Appeals

Page 543

484 So.2d 543

STATE of Alabama v. Gregg Daniel McDEVITT.

8 Div. 302.

Court of Criminal Appeals of Alabama.

Nov. 12, 1985.

Rehearing Denied Dec. 10, 1985.

Certiorari Denied Feb. 21, 1986

Alabama Supreme Court 85-312.

E. Charles Ogden III, Guntersville, for appellant.

Charles A. Graddick, Atty. Gen., and David B. Karn, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

The appellee, Gregg Daniel McDevitt, was indicted for the offense of robbery in the first degree of an employee of the Arab Wal-Mart, as proscribed by § 13A-8-41, Code of Alabama 1975. After McDevitt was appointed an attorney and entered a plea of not guilty on January 28, 1985, the trial court conducted a suppression hearing to determine the admissibility of McDevitt's statement. ¹ Upon consideration of the testimony presented, the court found that the prosecution failed to show a valid waiver of the constitutional rights enumerated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and, accordingly, ordered that the statement be suppressed. It is from this ruling that the State of Alabama appeals.

The testimony elicited during the suppression hearing established the following facts: When McDevitt was arrested at approximately 1:00 a.m. on Sunday, December 16, 1984, he was read his Miranda rights by Officer Tucker of the Bessemer Police Department. When Officer Tucker asked him if he understood his rights, and, with those rights in mind, whether he was willing to talk, McDevitt gave no response; he simply smiled. McDevitt was then transported to the police station.

Sometime shortly after lunch on Sunday, December 16, Lieutenant Acker interviewed McDevitt. Sergeant Bellanca, the officer in charge of McDevitt's case, was also present. Prior to any conversation, Lieutenant Acker read McDevitt his Miranda rights. ² When asked if he understood each of those rights, McDevitt answered affirmatively, and he also affirmatively responded to the question, "Having these rights in mind, do you wish to talk to me?" Lieutenant Acker asked McDevitt if he had talked to an attorney, to which he replied that he had not. The lieutenant told McDevitt that he thought McDevitt could use an attorney, but McDevitt stated that he "[c]ouldn't afford one, didn't need one.... [The attorney] would rip him off, get his money ... just didn't need one." Prior to any questioning, no one threatened McDevitt or made any promises or assurances to him. The lieutenant and McDevitt discussed several Wal-Mart robberies and a bank robbery. In response to the question whether he committed the robbery of the Arab Wal-Mart, McDevitt asked, "[I]f I tell you I did this, what kind of deal can you work out?" Lieutenant Acker responded that he was in no position to work out a deal and that McDevitt needed an attorney to "get with these people up here at Arab." McDevitt also stated that one would think each job would be easier, but that each job he did got harder. In response to the question of whether, as a former employee of Wal-Mart, he was "doing it out of revenge or was he doing it to get the money," McDevitt explained that "if I did these robberies, I'm not a revengeful person." He would not respond to the officer's inquiry about why he had, in his car, a ski mask with its mouth sewed up; however he admitted ownership of the mask. This interview lasted for approximately two hours and terminated at approximately 2:30 p.m. At no time during this period did McDevitt state that he did not want to talk to anyone or that he wanted an attorney present.

At approximately 12:30 p.m. on Monday, December 17, Special Agents Haynes and Walsh of the Federal Bureau of Investigation attempted to interview McDevitt. Although no officer from the local police department was present, the local authorities were aware of the interview. Agent Hayes first informed McDevitt that he wanted to talk to him about any information he had in regard to "some robberies." He also advised him of his Miranda rights ³ and McDevitt stated that he understood those rights. Then, McDevitt advised the agents that he wanted to talk to his attorney before he could provide them with any information. He explained that he had called his attorney, but the attorney had not returned his call yet. The agents started to leave and, then, McDevitt asked if he could talk off the record and he said a few things (which were not revealed during any testimony). When the agents left, one of them informed the Bessemer detective who had scheduled the interview that the interview was terminated because McDevitt wanted to speak with his attorney, but at the suppression hearing, Agent Walsh could not remember the detective's name.

On Wednesday, December 19, Mr. Bobby Ross met McDevitt in furtherance of his investigation of the August 1984 robbery of the Arab Wal-Mart store and two other robberies. He is employed by Wal-Mart Stores, Incorporated, as a district loss prevention supervisor and his duties include investigation of internal and external affairs, including thefts and robberies of the Wal-Mart stores in his district. Mr. Ross had known McDevitt for three and a half years; McDevitt had worked in one of the stores supervised by Mr. Ross. Prior to talking with McDevitt, Mr. Ross talked to Sergeant Bellanca. When Mr. Ross met McDevitt, Sergeant Bellanca and Mr. Don Walker, an investigator with the Wal-Mart stores, were present. However, when the interview commenced, Mr. Ross was alone with McDevitt. Mr. Ross did not inform McDevitt of his Miranda warnings, but he did ask him if he had been read his rights and if he understood that he did not have to talk to him. McDevitt answered affirmatively to both questions. Mr. Ross then cautioned McDevitt that McDevitt could discontinue the conversation at any point and that he was not there in any official capacity, but just as a representative of Wal-Mart. Before any mention of the Arab robbery, Mr. Ross said something to the effect that he had experience with police departments and all the cases would probably not be prosecuted. He also told McDevitt that he felt the best thing for him to do was to "come clean about what he had done"; that it is up to the prosecuting attorneys in each case to decide which ones they would prosecute; and that he needed to make a statement and get the best deal he could. (Mr. Ross later told the District Attorney on January 2, in a taped statement, that he also had stated to McDevitt that if he would make a statement on the robberies in Huntsville, the authorities would probably not pursue the case and not pursue all of the cases.) During their two-hour conversation, McDevitt wanted to know if Wal-Mart was willing to offer him a deal and stated that he would be willing to make whatever statement was necessary in connection with the robberies if he knew that provisions would be made for his family. His terms for the deal were that Wal-Mart pay the mortgage payment on his house while he was in prison and that Wal-Mart hire him as a truck driver or an investigator after he was released from prison. Mr. Ross, in turn, explained that he would present the proposal to his company, but that, in his opinion, the company would not accept responsibility for McDevitt's mortgage payments after he had robbed several stores. He also stated that McDevitt's employment application would be considered as that of any other applicant would be.

Mr. Ross interviewed McDevitt again at the police department on Friday, December 21. Again, they were alone. This time, Mr. Ross made no reference at all to McDevitt's rights. Mr. Ross did not threaten McDevitt or offer him any promises or rewards. In fact, he explained that he was in no position to make him any promises. Mr. Ross asked McDevitt if he was willing to admit to the robberies that he had committed. After approximately 20 minutes of conversation, McDevitt told Mr. Ross, "I'm going to make you a hero." When Mr. Ross asked him what he meant, McDevitt exclaimed, "I'm willing to make a full statement." Mr. Ross then explained that he would like to have Sergeant Bellanca present and McDevitt said, "Sure." Mr. Ross left the room, discovered that the sergeant was not in the office, and had a call put out to him over the police radio.

Mr. Ross then returned and asked McDevitt, "Why Wal-Mart stores?" McDevitt explained that he had looked at Wal-Mart stores from Oklahoma City to St. Augustine, Florida, and that they were easy. He continued as follows: "Take for instance, Arab, Alabama. The police department there is worthless. I sat on that parking lot for two weeks and watched that store and never once saw the police department come to the store at night." He further explained that, during those two weeks, he lay between the store building and a trailer that is located to the side of the building; that he took three days to figure out what to do and the remainder of the two weeks to get his nerve up; that he had been watching the management make the night deposits; that he would not rob a woman assistant because he had observed her park her car at Hardee's restaurant, located near the store, while the others parked their cars next to the trailer; and that he would not rob that store on a weekend because, on weekends, Hardee's had a guard on its premises.

After McDevitt made the statement, Sergeant Bellanca arrived. McDevitt then asked Mr. Ross to leave the room. Sergeant Bellanca did not testify at the hearing, but Mr. Ross testified that the sergeant did not reduce any statement to writing or tape-record one and, that so far as he knew, Sergeant Bellanca did not obtain a statement from McDevitt.

Prior to interviewing McDevitt on December 19 and 21, Ross had not been informed that McDevitt had previously requested an attorney; however, prior to talking with McDevitt, he did talk with Sergeant Bellanca.

On Friday, December 22, at approximately 6:00 p.m., Lieutenant Acker talked with McDevitt again. He...