State v. Sealy

• Citation: 728 So.2d 657
• Parties: STATE v. Donald Edward SEALY.
• Decision Date: 17 October 1997
• Court: Alabama Court of Criminal Appeals

728 So.2d 657

STATE v. Donald Edward SEALY.

CR-96-0881.

Court of Criminal Appeals of Alabama.

October 17, 1997.

Rehearing Denied January 30, 1998.

Certiorari Quashed February 26, 1999.

Bill Pryor, atty. gen., and Andy S. Poole, asst. atty. gen., for appellant.

Chris Connolly, Florence, for appellee.

James Marks, Tuscumbia, for amicus curiae Martha Sealy.

Alabama Supreme Court 1970797.

PATTERSON, Retired Appellate Judge.

Donald Edward Sealy was indicted on October 28, 1996, by the Lauderdale County grand jury in a three-count indictment, charging sexual abuse in the first degree, violations of § 13A-6-66, Code of Alabama 1975. The counts of the indictment are identical and charge Sealy with having sexual contact with his stepdaughter, J.M., he being over 16 years of age and J.M. being less than 12 years of age at the time.

On December 17, 1996, Sealy moved for a dismissal of the indictment on theories of estoppel, immunity, and due process. An evidentiary hearing was held on the motion, after which the trial court granted the motion. Its order reads, in pertinent part, as follows:

"Donald Edward Sealy was indicted on October 28, 1996, on charges of sexual misconduct involving [J.M.]. Prior to being indicted, Mr. Sealy was interviewed on several different occasions by Lauderdale County Sheriff's Investigator, Reeder Witt, Jr., regarding the alleged offense. Mr. Sealy made several statements to the investigator during these interviews. The settled rule in Alabama is clear according to Womack v. State, 281 Ala. 499, 205 So.2d 579 (1967), which states:

"`... [A]ll extra-judicial confessions are prima facie involuntary, and they can be rendered admissible only by showing that they are voluntary and not constrained or, in other words, free from the influence of fear or hope, applied to the prisoner's mind by a third person. The true test is whether, under all the surrounding circumstances, they have been induced by threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor. If so, whether true or false, such confessions must be excluded from the consideration of the jury as having been procured by undue influence.' Womack citing Redd v. State, 69 Ala. 255, (1881).

"`... [C]onfessions cannot be given into evidence against a person charged with a crime, until they are first shown to the satisfaction of the court to have been voluntarily made.' Womack citing Owen v. State, 78 Ala. 425, 428 (1885).

"In the present case, Investigator Witt testified that he informed the defendant, Donald Sealy, that if Mr. Sealy continued counseling and did everything asked of him that he would not be prosecuted. The investigator's inducement gave the defendant, Donald Sealy, the hope of nonprosecution and therefore made any admissions by the defendant involuntary and therefore excludable as evidence.

"It is the opinion of this Court that the defendant, Donald Edward Sealy, was induced or coerced into cooperating with Investigator Witt by promises of nonprosecution in exchange for his cooperation. After the defendant was given assurances and hope, the defendant was subpoenaed to the Grand Jury, gave testimony, and was subsequently indicted.

"Therefore, the defendant's Motion to Dismiss the Indictment is GRANTED."

The state, relying on Ala.R.Crim.P. 15.7, appeals. It contends that the trial court abused its discretion and committed reversible error in dismissing the indictment. It argues that the evidence was insufficient to support a finding that Sealy had been improperly induced to testify before the grand jury by a grant of immunity from prosecution and a finding that due process had been violated because of preindictment delay. It further argues that even if the evidence supported Sealy's claim that he had been improperly induced to testify before the grand jury, there still would be no valid grant of immunity from prosecution and he would not be entitled to the dismissal of the indictment.

The record shows that Sealy and Maria Sealy were married in September 1990; that, at the time of their marriage, Maria had a four-year-old child by a previous marriage, J.M.; and that this child lived with the Sealys in the family home in Lauderdale County during their marriage. They separated in early June 1995, and Maria and J.M. moved to Madison County. On June 19, 1995, Maria filed a complaint with the Madison County Department of Human Resources, alleging that Sealy had sexually abused her daughter, J.M. After a preliminary investigation, including an interview with J.M., the Madison County Department of Human Resources requested that the Lauderdale County Department of Human Resources interview Sealy. Sealy was interviewed on July 21, 1995. The record shows that at this interview he was advised that he had been accused of engaging in sexual misconduct with his stepdaughter, J.M. He testified that he "cooperated" with the person who interviewed him. After this interview, he voluntarily participated for several months in a number of individual and group counseling programs for persons accused of sexual misconduct. On February 21, 1996, the matter was transferred from Madison County to Lauderdale County for appropriate disposition. In March 1996, Sealy was contacted by Reeder Witt, Jr., an investigator with the Lauderdale County Sheriff's Department. Witt had been asked by Lori Williams, an assistant district attorney in the Lauderdale County District Attorney's Office, to interview Sealy in reference to the accusation of sexual misconduct and to obtain a statement from him. Before the interview, Witt advised Sealy of his Miranda rights. He acknowledged that he understood those rights and he agreed to "cooperate" and to make a statement, which he did. He told Witt, inter alia, of his efforts to seek counseling and of the financial assistance he was giving his wife. He testified that Witt told him that he was doing the right thing and that no charges would be filed against him. He denied that he had been advised of his Miranda rights before he gave the statement. Witt denied that he told Sealy that no charges would be filed against him; however, he conceded that Sealy could reasonably have reached that conclusion from what Witt said to him.

Witt testified that he and Williams concluded that Sealy's wife, Maria, was primarily interested in receiving financial assistance from Sealy and "didn't seem very interested" in prosecuting him criminally, and because of this they made a "conscious decision" not to seek an indictment following the March 1996 interview although they believed that they had sufficient evidence to obtain one. Maria filed for divorce on April 23, 1996. Sealy reported his whereabouts and activities to Witt by telephone on May 22 and June 23, 1996, as he had been instructed to do. In the latter part of September 1996, Sealy signed a settlement agreement in the divorce case, essentially on the terms proposed by Maria. On October 9, 1996, Witt interviewed Sealy again and took another statement from him. Sealy again "cooperated" in giving the statement. Witt did not remember whether he advised Sealy of his Miranda rights on this occasion. He advised Sealy that Maria was pressing the district attorney's office to file criminal charges against him and that Sealy would be subpoenaed to appear before the Lauderdale County grand jury. Sealy testified that Witt encouraged him to appear before the grand jury and to cooperate, and told him that his appearance would be a "mere formality," that it would put an end to the matter, and that he would not be indicted. Witt testified that he told Sealy that Sealy needed to go before the grand jury so that his wife would not be able to continue holding the threat of criminal prosecution over him. Although he conceded that he encouraged Sealy to go before the grand jury, he denied that he told him that he would not be indicted. He stated that he told Sealy that there was a possibility that he could be indicted and a possibility that he could be "no-billed."

Maria testified that although she sought financial assistance from Sealy after their separation, she never said that she did not want him prosecuted; on the contrary, she said, she had sought his criminal prosecution from the very beginning. Subsequently, Sealy testified before the grand jury, under oath, after he had been advised of and waiving his Miranda rights, and was indicted on October 31, 1996. Sealy and Maria were divorced in December 1996, under the terms of the written agreement signed by Sealy in September. We conclude from the trial court's order dismissing the indictment that the dismissal was based on two findings by the trial court: (1) that any inculpatory statements made by Sealy would be inadmissible as evidence against him because they were rendered involuntary by the promises made by Investigator Witt that if Sealy cooperated by giving statements and testifying before the grand jury he would not be prosecuted; and (2) that because he was effectively granted immunity from prosecution through the representations of Witt, the state was estopped from indicting him.

Assuming that the evidence presented at the hearing on the motion to dismiss supports Sealy's claim that the statements he made to Witt and to the grand jury were improperly induced by promises of immunity from prosecution and that they would be inadmissible as evidence against him in a trial of his case, he is not entitled to dismissal of the indictment under the facts presented here. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966); Ex parte Radford, 557 So.2d 1288 (Ala.1990). The most he would be entitled to is the suppression of the evidence at trial on proper motion or objection. In Ex parte Radford, the Alabama Supreme Court held:

"Although our discussion to this point is

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