Tiner v. State

• Decision Date: 06 January 1966
• Docket Number: 4 Div. 242
• Parties: Cecil TINER v. STATE.
• Court: Alabama Supreme Court

Page 859

182 So.2d 859

279 Ala. 126

Cecil TINER v. STATE.

4 Div. 242.

Supreme Court of Alabama.

Jan. 6, 1966.

Rehearing Denied Feb. 10, 1966.

Jack W. Smith, Geneva, for appellant.

Richmond M. Flowers, Atty. Gen., and David W. Clark, Asst. Atty. Gen., for the State.

HARWOOD, Justice.

This appeal is from a judgment, entered pursuant to a jury verdict finding the appellant guilty of murder in the first degree, and fixing his punishment at imprisonment in the penitentiary for life. This is a second appeal in this case. Upon his first trial the appellant was adjudged guilty of murder in the first degree, and his punishment was fixed at death. Tiner v. State, 271 Ala. 254, 122 So.2d 738. This judgment was reversed by this court, and the second trial resulted in the judgment above mentioned.

In the opinion in the first appeal (271 Ala. 254, 122 So.2d 738) the facts were set out in detail. On the second trial the facts developed were substantially the same as those shown in the appellant's original trial, and we therefore will not burden this opinion with a lengthy repetition of these facts, but refer those interested to the facts as set forth in the first appeal, supra.

We think it sufficient to observe that the facts in each case show a coldblooded act of murder by this appellant and his companion and confederate William Hable. The victim of the murder was James Cuthbert Woodham who at the time he was shot to death was Sheriff of Geneva County, Alabama.

A confession made by the appellant, and introduced in evidence by the state in the present trial was to the effect that after the appellant and Hable had stolen a safe from a hospital in Hartford, Alabama, they drove out on a dirt road in Hartford where they broke the hospital safe open, removed some narcotics therefrom and took a 'shot'; the appellant and Hable then drove through the town of Geneva and were stopped by a car driven by Sheriff Woodham; the sheriff looked in the trunk of appellant's car and went to the right side of the car; the appellant helped the sheriff pull the back seat over on the front seat, and during this operation the sheriff found a paper sack on the front seat of the appellant's car; the paper sack contained narcotics; as the sheriff started to take the sack and the seat out of the automobile, this appellant drew his pistol and shot the sheriff one time; as the sheriff fell he dragged the car seat and the sack with him; the sheriff then started shooting and the appellant ran to the left of his automobile and fired three more shots; the sheriff then started toward his own automobile and the appellant ran to his automobile and drove off after picking up his companion Hable.

The appellant and Hable then drove south on dirt roads; at some point they threw the gun over a wooden bridge; later the appellant and Hable left the appellant's automobile taking with them the one remaining bottle of morphine tablets which was later left on the top of a filling station in Florida where the appellant was apprehended as he came down from the roof of the filling station.

In the present trial the appellant testified that he had walked off down the road a short distance at the time of the shooting, and that he did not shoot Sheriff Woodham.

William Hable, now under life sentence for the murder of Sheriff Woodham, appeared as a witness for the appellant at this second trial. He did not testify in the first trial.

Hable's testimony was to the effect that Tiner had walked off down the road and that Sheriff Woodham had caught hold of him and he, Hable, was jerking to get loose when a shot was fired. Hable testified that he did not have a gun, and that Sheriff Woodham must have shot himself as he attempted to get his pistol out of the holster. Evidence introduced by the state showed that Sheriff Woodham, a large man, was righthanded, and that the bullet causing his death entered his body on the left side.

Some six points are argued by counsel for appellant as constituting error in the proceedings in this second trial.

1. That the confessions and statements made by the appellant were improperly admitted into evidence over appellant's objections in that appellant was without counsel at the time the confessions or statements were made.

2. Evidence illegally obtained without a search warrant was improperly admitted over appellant's objections.

3. The appellant was denied a speedy second trial.

4. The court erred in admitting into evidence transcriptions of evidence of witnesses testifying at the first trial who were not present at the second trial.

5. The jury separated during their deliberations.

6. Failure of the court to ex mero motu appoint a lunacy commission to examine into appellant's mental condition.

Confessions

Several statements made by the appellant at the time of his arrest and afterwards were introduced in evidence over appellant's objections. Two of these statements were confessions.

The evidence shows that just prior to appellant's arrest, John Till, Special Agent of the Federal Bureau of Investigation, Major John Cloud of the Alabama Highway Patrol, and John Williams, an investigator for the State of Alabama, and William Hable, appellant's confederate, had just arrived at a service station a few miles east of Pensacola, Florida. These officers knew of the shooting of Sheriff Woodham. As the automobile of the officers was halting, the appellant was observed walking or running toward some woods to the rear of the service station. He was overtaken by Major Cloud and Williams and returned to the officer's automobile where he was handcuffed. Till informed the appellant he was under arrest, and he was searched. At this time the appellant spat out two rolled up fifty dollar bills he had concealed in his mouth. Tablets, later shown to be narcotic, were inside the rolled bills. At this time he told the officers his name was Cecil Tiner, and further stated that he had spent the night on the roof of the service station, and had come down when a helicopter had flown over and he was afraid he had been observed.

The officers and their prisoners then drove to a Florida Highway Patrol substation. On this drive the appellant stated that he had put the bills in his mouth because in previous arrests officers had taken money from him and had never returned it.

These two statements were of facts collateral to any criminal offense, not criminating in themselves, and dependent on other and additional evidence to create any incrimination. Such statements are deemed voluntary under our decisions. See Baker v. State, 35 Ala.App. 596, 51 So.2d 376, where this doctrine is discussed in detail.

Even so, before the above statements were received in evidence each of the officers present testified that no threats or coercion and no reward or hope of reward was offered the appellant to induce him to make the statements. The predicate of voluntariness thus established did not include any testimony to the effect that the appellant was informed that he could remain silent or that he could procure counsel. Because of the omission in the predicate of these last two mentioned factors, counsel for appellant argues that the statements were erroneously admitted under the doctrine of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977.

In Escobedo the facts were that after his arrest Escobedo repeatedly requested to be permitted to consult his attorney. These requests were denied. Further, Escobedo's attorney had visited the jail and asked to see Escobedo. This request was likewise denied. Escobedo, when questioned by the police was not advised of his right to remain silent.

In Duncan v. State, 278 Ala. 145, 176 So.2d 840, Justice Lawson reviewed in detail the interpretation of Escobedo made by various courts, both federal and state. Some courts, particularly California and Oregon, have held that a confession by an accused, on whom suspicion has focused, can not properly be received in evidence even though he did not request counsel, unless it is shown that the accused intelligently waived counsel, and no waiver can be presumed if the interrogating officers did not inform the accused of his right to counsel or his right to remain silent.

On the other hand, the decisions of a number of courts were set forth by Justice Lawson wherein the doctrine of Escobedo was strictly limited to the factual situation of Escobedo, and the effect of the holdings in these jurisdictions strictly interpreting Escobedo is that if a confession is otherwise shown to be voluntary, the predicate of voluntariness is sufficient even though the suspect was not informed of his right to remain silent and had not requested permission to confer with counsel.

We will not cite the authorities set forth in Duncan, supra, but observe that the effect of Duncan is to place the views of this court in accord with the views of those jurisdictions limiting the doctrine of Escobedo to the facts of that case.

Since the decision and opinion of this court in Duncan (30 June 1965), the United States Court of Appeals for the Second Circuit published an opinion on 22 November 1965, in United States of America v. Cone, 354 F.2d 119. The question for decision was 'whether Richard Cone's statements made to customs agents on the street a few minutes after his arrest were properly admitted at his trial. The agents did not advise Cone of his right to remain silent and that what he said might be used in evidence. Cone did not ask to consult counsel prior to making the statements, nor was he advised of his right to do so.'

In the course of the opinion the court made the following observations:

'The agents did what was required by all accepted police practices and what any citizen would have expected them to do under the circumstances when they questioned Cone fairly and noncoercively.

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'It was the duty of the agents to question Cone and all others who might be concerned...