Swann v. State

• Decision Date: 20 April 1982
• Docket Number: 1 Div. 320
• Citation: 412 So.2d 1253
• Parties: Wilbert Conrade SWANN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1253

412 So.2d 1253

Wilbert Conrade SWANN v. STATE.

1 Div. 320.

Court of Criminal Appeals of Alabama.

April 20, 1982.

David L. Barnett, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and William Dudley Motlow, Asst. Atty. Gen., for appellee.

JOSEPH J. MULLINS, Retired Circuit Judge.

The Grand Jury of Mobile County returned an indictment for murder against the appellant, Wilbert Conrade Swann, and he entered a plea of not guilty, and was found guilty by a jury of murder as charged in the indictment. The appellant was duly sentenced to imprisonment in the penitentiary of the State of Alabama for a term of life, and he gave notice of appeal to this Court.

The appellant was at all proceedings in the trial court represented by counsel of his own choice, and is represented in this Court by the same counsel by appointment of the trial court. The appellant was given a free transcript. This appeal was submitted to this Court on briefs.

The appellant states four reasons in his brief why the trial court erred to the prejudice of the appellant. First, it is error to allow evidence to be introduced which is the product of a "stop and frisk" search when the only basis for the stop is appellant's resemblance to a composite drawing of the suspect; second, it is error to continue to question a suspect who has invoked his right to counsel until counsel is present. A statement made under these circumstances is inadmissible; third, it is error to introduce a statement when there has been a suppression of a tape which is the best evidence of the statement, and it was requested by appellant, and ordered to be produced by the court; fourth, when there is no showing of the voluntary shooting of a pistol, there can be no conviction under Code of Alabama, Title 13A-6-2(a)(2).

The first error complained of by the appellant in his brief is that state's witness, Officer Mickey Domen, did not have the right to stop and frisk the appellant when Domen found a .22 caliber pistol concealed on the appellant, the appellant was arrested for having a concealed pistol. There was a motion by appellant to suppress. On voir dire examination of Officer Domen, a member of the Mobile Police Department, by appellant's counsel, we quote from the record:

"THE COURT: All right, go ahead.

"VOIR DIRE EXAMINATION

"BY MR. BARNETT:

"Q Let me ask you this, Officer Domen, you got a piece of paper from your squad or whatever it was with a description on it. Is that a fair statement?

"A Description, yes, sir.

"Q You went out there--the disturbance you went out to Solomon's about didn't have anything to do with this fellow, did it?

"A No, sir.

"Q You had already handled that when you saw him?

"A Yes, sir.

"Q In relation to when it happened, about how long after you handled that disturbance was it that you saw this fellow? What period of time elapsed from the time you handled that complaint until the time you saw this fellow?

"A Two or three minutes.

"Q Two to three minutes. All right, now, he hadn't done anything in your presence, hadn't committed any crime in your presence, had he?

"A None.

"Q You had no warrant for him, did you?

"A No, sir.

"Q So, the reason and is it a fair statement to say the only reason you went over and approached him is the likeness he bore to the description you were given in your squad before you went out that day?

"A Exactly.

"MR. BARNETT: That's all I have, Judge. Based on that we move to suppress any evidence that they found from him based on the fact that it was illegally seized because the stop itself was not based on any kind of probable cause and wasn't sufficiently legally correct in order to enable him to stop and frisk this fellow.

"THE COURT: Denied. Go ahead."

There was evidence that Officer Domen had a description of the appellant as a murder suspect. It appeared later the pistol was the property of the appellant, and a bullet taken from the body of the deceased which caused her death was fired from appellant's .22 caliber pistol, and that the arrest was made in the parking lot at Solomon's Saloon. The arresting officer had a description of the murder suspect furnished by the Mobile Police Department.

We hold that Officer Domen, when he stopped the appellant in Solomon's parking lot, had sufficient facts before him to cause Officer Domen to reasonably suspect that appellant had committed a felony, and the appellant being a murder suspect, the officer was justified in searching the appellant for a dangerous weapon, and upon finding a .22 caliber pistol on the appellant, the officer had a right to seize the pistol, and arrest the appellant for having it in his possession. Code of Alabama, 1975, Sec. 15-5-30 and Sec. 15-5-31; Andrews v. State, Ala.Cr.App., 406 So.2d 1041; Certiorari Denied, Ala. 406 So.2d 1045; Johnson v. State, Ala.Cr.App. 406 So.2d 446; Burch v. State, Ala.Cr.App. 375 So.2d 546; Robinson v. State, Ala.Cr.App. 361 So.2d 379; Certiorari Denied, Ala. 361 So.2d 383; Mauldin v. State, Ala.Cr.App. 402 So.2d 1106; Jones v. State, Ala.Cr.App. 401 So.2d 322.

The second error complained of by the appellant in his brief is that it is error to continue to question a suspect, who has invoked his right to counsel, until counsel is present. The appellant was arrested on a warrant charging him with murder. At the time of his arrest, before any questions were asked him, and in the presence of Police Officers Richardson, Boone, Williams, Webb, and his mother, his Miranda rights were read to him. We quote from the record:

"MR. DEEN: Read it like Detective Boone did.

"THE WITNESS: Best I can.

"A Number 1, you have the right to remain silent and not make any statements at all. Number 2, anything you say will be used against you in a court of law. Number 3, you have a right to consult an attorney before making any statement and have such attorney present with you while you are making a statement. Number 4, if you do not have enough money to afford an attorney, you have the right to have you one appointed by the court to represent you and consulting him before making any statements and to have him present while you are making a statement.

"Q Is that it?

"A Number 5, if you request an attorney no questions can be asked you until the attorney is present to represent you. Number 6, at any time during the questioning, you may request that the questioning be stopped and it shall be stopped. Then Sergeant Boone asked him if he understood his rights.

"Q What did he say?

"A He said he did.

"Q Did he appear to be intoxicated or on drugs at the time the statement was read?

"A No, sir. * * * "

The appellant, while being transported from the place of his arrest to the police headquarters, and when no threats, or promises had been made to him to talk, talked with the arresting officers about the appellant's whereabouts on the day of the homicide, and for a few days thereafter, and about the people he had been with, and about the ownership of a .22 caliber pistol owned by the appellant.

Appellant's mother testified in substance that when the appellant was arrested, and before the officers took him downtown, she stated to the officers that she wanted to call Attorney David Burnett's office so he would know about the arrest of the appellant. That Officer Webb went into the kitchen with her, and she made the call.

At no time after the appellant was read his Miranda rights, and said he understood them, or during the ride downtown, while he was talking with the arresting officers, did he request that his attorney be present, or that no further questions be asked until his attorney was present, or he could have an opportunity to talk with his attorney before answering further questions. The record shows that the questions asked were freely and voluntarily answered by the appellant. That he fully understood his Miranda rights.

When a suspect of a crime is fully informed of his Miranda rights, and knowingly, intelligently, and voluntarily proceeds to talk with the arresting officers, and fails to assert his right to remain silent, or have present his attorney, he waives the rights to remain silent, or have an attorney present during the conversation with the officers. We hold that the facts in this record show clearly that the appellant knowingly, intelligently, and voluntarily waived his right to have his attorney present during the talk with the officers. Dotson v. State, 288 Ala. 727, 265 So.2d 162; 48 Ala.App. 381, 265 So.2d 164; Certiorari Denied, 288 Ala. 742, 265 So.2d 175; Certiorari Denied, 93 S.Ct. 930, 409 U.S. 1117, 34 L.Ed.2d 701; Love v. State, Ala.Cr.App., 372 So.2d 414; Taylor v. State, 282 Ala. 567, 213 So.2d 566; Jackson v. State, Ala.Cr.App., 387 So.2d 316; Williams v. State, Ala.Cr.App., 384 So.2d 1205.

The appellant's third contention in his brief is that the trial court erred to his prejudice when it allowed to be introduced into evidence a statement when there has been a suppression of a tape which is the best evidence of the statement, and it was requested by the appellant, and ordered to be produced by the court. With reference to the objection by the appellant on the ground that the tape is the best evidence of the statements that had been taped, we note that the testimony of Officer Richardson, who was present when the conversation between the appellant and the police officers who arrested the appellant was taped, was admissible into evidence after appellant was read his Miranda rights, and knowingly, intelligently, and voluntarily waived them. Upon a proper predicate a tape of a conversation, if available, may also be introduced into evidence. We quote from Elkins v. State, 250 Ala. 672, 35 So.2d 693:

"All that the accused voluntarily wrote or said which is material to the charge, is competent against him because it is his own admission and against his own interest. The witness testifies not as to what the writing contains, but as to what he heard the defendant say. The court was not in...