Thompson v. State

• Decision Date: 19 April 1977
• Docket Number: 6 Div. 349
• Citation: 347 So.2d 1371
• Parties: Theodore THOMPSON v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1371

347 So.2d 1371

Theodore THOMPSON v. STATE.

6 Div. 349.

Court of Criminal Appeals of Alabama.

April 19, 1977.

Rehearing Denied May 24, 1977.

U. W. Clemon, Demetrius C. Newton, Birmingham, for appellant.

William J. Baxley, Atty. Gen. and Winston D. Durant, Asst. Atty. Gen., for the State.

BOWEN, Judge.

The appellant was indicted and convicted for robbery. The petit jury fixed punishment at fifteen years in the penitentiary and the trial court entered judgment and sentence accordingly. Both of the appellant's retained trial counsel have been appointed to represent him on this appeal.

The only questions raised on appeal concern the admissibility of a confession received in evidence before the trial court. The appellant contends that the state failed to establish the facts that the confession was voluntary and that the accused fully understood the nature of the rights asserted to have been waived. The appellant also urges that the procedures employed in obtaining the confession violated the defendant's Sixth Amendment right to the effective assistance of counsel.

The question of the sufficiency of the evidence is not presented to us for review. There was no motion to exclude the state's evidence, no request for the affirmative charge, no exceptions reserved to the oral charge, and there was no motion for a new trial. Hunter v. State, Ala.Cr.App., 331 So.2d 406 (1976); Hall v. State, 57 Ala.App. 132, 326 So.2d 660 (1976).

Around 11:30 on the morning of Monday, October 7, 1974, the body of Robert Cox, the manager of the Exxon Service Station located on Weible Drive in Fairfield, Alabama, was found in his office at the service station. Examination by a deputy coroner and a subsequent autopsy revealed that Cox had been shot in the head with a small caliber bullet. At trial the deputy coroner testified that the bullet was of a small caliber despite his previous testimony at a preliminary hearing that it was a .38 caliber bullet. A state toxicologist testified that the bullet was a .22 long rifle bullet.

Although a station employee testified that there had been between two and three thousand dollars in the office around 9:30 A.M., when Cox's body was discovered the money was missing.

On the Sunday following the robbery, John Henry Robinson saw the appellant standing on the corner in front of the house of Michael McConnico. Robinson stopped his automobile and had some conversation with the appellant. In compliance with the appellant's request, Robinson loaned him twenty dollars so he could get out of town. During the course of the conversation, another passenger in the vehicle asked the appellant why he was leaving town and the appellant replied because of "the incident that happened Monday". The appellant admitted that "they really bungled it". The appellant also admitted that "it looked like his buddy had left him".

Robinson, a one time employee of the Exxon Service Station, also testified that Michael Blanche had told him several times that he might rob the station and that Blanche had made this statement to him about one week before the robbery.

On Saturday, October 19, 1974, Detective W. R. Stricklin and Officer Rubin Wilkinson of the police department of the City of Fairfield, Alabama, drove to Nyack, New York, with a warrant for the arrest of the appellant. Waiving extradition, the appellant was returned to Fairfield and placed in the city jail on Tuesday morning, October 29, 1974. Stricklin testified that the appellant was not questioned on the return trip. That afternoon, Detective Stricklin had the appellant brought to his office for questioning. The appellant informed Stricklin that he had been advised by his lawyers not to say anything. Stricklin then told the appellant that the best thing he could do was to follow his lawyers' advice. The appellant was returned to his cell without further questioning. Sometime during the day, Detective Stricklin was informed that one of the appellant's attorneys had called and stated that he represented the appellant and did not wish the appellant to talk with anyone.

Either on the afternoon of the 29th or the next morning, Stricklin notified the appellant's attorneys by telephone that a line-up would be held on October 30th at 1:00 P.M. Around 9:30 on the morning of the line-up, Stricklin called the defendant's attorneys and notified them that the line-up had been canceled. Stricklin testified that between the time the line-up was originally scheduled and the time it was canceled, Hermon Long, an employee of J. C. Penney Department Store, identified the appellant from a photographic display as one of the two men he had seen running across the parking lot of Penney's on the morning of the robbery. Detective Stricklin also went to the appellant's cell and advised him that the line-up had been canceled. No further conversation was had at that time other than to notify the appellant that he would be transferred to the county jail. Stricklin testified that he did not inform the appellant that a witness had identified him.

Sometime later that morning Officer Wilkinson photographed and fingerprinted the appellant. No conversation was had while Wilkinson "mugged and printed" the appellant. According to Wilkinson's testimony, after he finished the appellant stated that he wanted to speak to Detective Stricklin. Stricklin was summoned and as he approached, the appellant announced that he wasn't going to take the murder rap for Michael Blanche and that he wanted to tell "how it was". Stricklin advised the appellant that "(he) didn't have to tell (him) anything", but the appellant expressly stated that he wanted to.

Stricklin took the appellant to the office of Detective Sanders who advised the appellant of his Miranda rights from memory. Before reducing the appellant's statement to writing, Sanders also read him his rights off the printed cover sheet on which the confession was written. The appellant also read these rights and indicated to Sanders that he understood these rights. Sanders then wrote down what the appellant stated. The appellant read the statement admitting his part in the robbery and signed it. The statement concludes with the following two sentences:

"I have talked to my lawyer and I am giving this statement fully and voluntairly (sic) and to ease my conscious (sic). I have read these three pages of my statement and they are true and correct to the best of my knowledge."

In the confession, the appellant admitted that he went with Michael Blanche to rob the Exxon Service Station. According to this statement, the appellant was merely present while Blanche pulled a .25 caliber automatic pistol on the station manager and took the money. As the appellant started to leave the scene, he heard a shot, turned around and saw Blanche "come running out of the office with a gun in his hand and a brown paper bag up under his jacket". After the robbery and murder, Blanche told the appellant to wait on a corner but the appellant never saw him again. Both Sanders and Stricklin testified that no force or coercion was employed against the appellant. When the confession was given they were the only ones in the room. No offer or promise of reward was made to the appellant. At the time the appellant gave the confession (approximately 1:20 P.M., October 30, 1974) he had been in jail approximately thirty-one hours. During the time since he had been placed in the Fairfield City Jail, the appellant had been visited by his brother and one of his attorneys. At the time when this statement was given, Detective Stricklin knew that one of the appellant's attorneys had stated that he wanted to be there if the appellant was interviewed or questioned. Officer Sanders did not know the appellant was represented by counsel until the appellant was almost finished with his confession.

The testimony of the appellant was in direct contradiction to that adduced by the state. The appellant testified that during the return trip from New York to Alabama, the police officers sought to question him concerning the case. He stated that he was questioned on nine or ten separate occasions in his jail cell upon the first day of his return from New York; that Wilkinson and Stricklin constantly questioned him; that he asked to call his attorney more than six or seven times and was denied permission; that he was fingerprinted five or six times; that he was not advised of his rights and that even if he was he didn't understand them; that Officer Stricklin questioned him five or six times Wednesday morning. The appellant testified that he just "confessed" what they told him to say and what he thought they wanted to hear and that he "would have told them anything to leave (him) alone".

Three witnesses testified that the appellant and Michael McConnico were painting a house during the time of the commission of the robbery.

The appellant contends that the admission of the confession into evidence constitutes reversible error because (1) the confession is based on the continued interrogation of the defendant after he declined to waive his constitutional rights, (2) because his privately retained attorney had advised the defendant to remain silent and had requested to be present at any interrogation but was not notified or given an opportunity to be present during the interrogation, (3) because the police officers promised the defendant that if he would give them a statement against Michael Blanche, they would set him free in return for his turning state's evidence, (4) that the police officers misrepresented to the defendant that an employee of Penney's had identified him from a photograph, and (5) finally because the state did not meet its heavy Miranda burden to show that the defendant fully understood the nature of the constitutional protection he was waiving.

I

Conflicting evidence was presented on three of the assigned grounds ((1), (3) and (4)) set out above. However, the testimony...