Thomas v. State, 4 Div. 956

• Citation: 531 So.2d 45
• Decision Date: 12 April 1988
• Docket Number: 4 Div. 956
• Parties: Rudolph THOMAS, Jr. v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 45

531 So.2d 45

Rudolph THOMAS, Jr. v. STATE.

4 Div. 956.

Court of Criminal Appeals of Alabama.

April 12, 1988.

Rehearing Denied June 14, 1988.

Certiorari Denied Sept. 9, 1988

Alabama Supreme Court 87-1115.

Bill Kominos, Ozark, for appellant.

Don Siegelman, Atty. Gen. and Mary Ellen Forehand, Asst. Atty. Gen., for appellee.

McMILLAN, Judge.

The appellant was convicted of murder, in violation of § 13A-6-2, Code of Alabama (1975), and was sentenced to life imprisonment.

The sole argument on appeal is the appellant's contention that the trial court committed reversible error in denying the motion to suppress his videotaped confession. Appellant argues that the confession was taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was therefore inadmissible.

The record in the instant case indicates that the appellant was arrested for the murder of Napier Field Mayor Herbert Beumer. The appellant was then read his Miranda rights, at which time he executed a waiver form. Immediately thereafter, in the presence of Trooper Lloyd Arrington, Sheriff Bryant Mixon, and Deputy Walter Ford, the appellant made the videotaped statement that is the subject of this appeal. The appellant contends that he initially denied all knowledge of the crime charged, and that, only after certain intimidating or coercive statements were made to him by Arrington, Mixon, and Ford, did he confess to the murder.

In Seawright v. State, 479 So.2d 1362, 1367 (Ala.Cr.App.1985), citing Rogers v. State, 365 So.2d 322 (Ala.Cr.App.), cert. denied, 365 So.2d 334 (Ala.1978), and cases cited therein, this Court held the following:

"The test for the voluntary nature of an entire judicial confession or inculpatory statement is whether in the light of all the surrounding circumstances, the statement was free from inducement, threat, or promise, either expressed or implied, which would have produced in the mind of the accused any fear of harm or hope of favor." (See also Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Mitchell v. State, 508 So.2d 1196, 1198, 1199 (Ala.Cr.App.1986)).

"If so, whether true or false, such a confession must be excluded from the consideration of the jury as having been procured by undue influence. The duty rests in the first instance on the trial judge to determine whether or not a confession is voluntary." Mitchell, supra at 1199.

Further, the true test of determining whether extrajudicial confessions are voluntary is whether the defendant's will was overborne at the time he confessed so that the confession was not the product of a rational intellect and a free will. Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963); Mitchell, supra; Eakes v. State, 387 So.2d 855, 858-59 (Ala.Cr.App.1978). Thus, any factual inquiry into the voluntariness of the appellant's confession must focus on the alleged statements made to him by law enforcement officials as well as on any facts which may show that the appellant is more or less susceptible to pressure than the average person (on this point, see LaFave and Israel, Criminal Procedure (1984), § 6.2).

The appellant contends that the Sheriff and his Deputy told him that he would benefit himself by making a confession. A review of the videotaped statement, however, shows that the appellant was told to "Benefit yourself if you can." "Surely, there's some kind of reason"; "Benefit yourself as much as you can"; "Give some kind of reason." The statements made, in the context and under the circumstances, were simply exhortations to tell the truth, not attempts to get the appellant to admit guilt or to confess. This Court held in Eakes v. State, 387 So.2d 855, 859 (Ala.Cr.App.1978), citing Edwardson v. State, 255 Ala. 246, 251, 51 So.2d 233 (1951):

"A promise or inducement for a confession cannot be implied from an exhortation to a prisoner that it is best or better to tell the truth. The rule is otherwise, where the party has been told by a person in authority that it is better for him to confess, or that he will be bettered by saying a particular thing." (Emphasis supplied).

Accordingly, such statements would not render the appellant's confession inadmissible.

The appellant also argues that his confession was coerced as a result of statments made to him by Arrington, Mixon, and Ford about certain incriminating evidence they had discovered in their investigation; i.e., that an accomplice of the appellant, Patricia Phillips, had told investigators how she and the appellant had planned the crime, and that the Sheriff had tire prints taken from the crime scene that would match those of the appellant's car. It is not unfair or coercive to confront a suspect with evidence that suggests his guilt. See Moore v. State, 415 So.2d 1210, 1214 (Ala.Cr.App.), cert. denied, 459 U.S. 1041, 103 S.Ct. 459, 74 L.Ed.2d 610 (1982) (wherein this Court held that it was neither an unfair tactic nor legally coercive to confront a suspect with a co-defendant's confession); Barrow v. State, 494 So.2d 834, 839 (Ala.Cr.App.1986) (in which the Court held that even confronting appellant with incorrect statements about evidence implicating him did not render his confession inadmissible where the misrepresentation was not reasonably calculated to lead the accused to confess falsely).

The appellant contends that Arrington, Mixon, and Ford coerced his confession by threatening to charge him with a capital murder, a contention allegedly supported by the fact that he had not been so charged when the statement was made and was not so charged in the indictment. At the time of the appellant's arraignment in district court on November 5, 1986, and at the time of a later bond hearing, the appellant was, in fact, charged with capital murder. Additionally, there is no evidence in the record of this case suggesting that the statement was made in order to bargain with the appellant or to intimidate him. Rather, viewed in the context in which it was made, the statement appears to have been intended merely to apprise the appellant of the reality of his situation. This Court held in Ball v. State, 489 So.2d 675, 677 (Ala.Cr.App.1986), a case factually similar to the one at bar:

"[O]fficer Gant was not attempting to bargain with or promise the defendant anything. He was simply informing the defendant of the reality of the situation and that if he did not obtain more information different from that which he already had she would be arrested."

See also United States v. Ballard, 586 F.2d 1060, 1062-63 (5th Cir.1978) (where confession was deemed voluntary even though officer described both 15-year maximum sentence and the 5-7 year penalty normally imposed).

The appellant next contends that Sheriff Mixon told him, "[T]he way it looks now, she's [the accomplice is] going to get off free and you're going to wind up swinging." When asked at the suppression hearing what he took the word "swinging" to mean, appellant replied:

"The way it was said towards me when the question was asked meant that I was going to be left holding the whole thing. I was going to be punished for everything that happened."

The appellant was himself a former police officer. As such, he should have understood that the presence or absence of a co-defendant would not, under the circumstances, lessen the consequences he faced for the crime charged. Moreover, it is again the opinion of this Court that Sheriff Mixon's statement was meant only to pragmatically advise the appellant as to his predicament; such advice, pursuant to Ball, supra, would not make his confession inadmissible.

The appellant also states that Sheriff Mixon told him that Sheriff Mixon "had an ace card and that when he went to jail there would be no bond." However, a review of the appellant's statement shows that Mixon, in fact, said, "You do what you want to, but I'll tell you this.... When you get into jail, the bond ain't gonna be $1,000.00." The appellant has failed to show that he was coerced.

Finally, this Court notes that, immediately prior to the appellant's confession, the following exchange occurred:

"SHERIFF MIXON: What would it take on our part to...