Trawick v. State

• Decision Date: 09 November 1995
• Docket Number: CR-93-1433
• Citation: 698 So.2d 151
• Parties: Jack Harrison TRAWICK v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 151

698 So.2d 151

Jack Harrison TRAWICK v. STATE.

CR-93-1433.

Court of Criminal Appeals of Alabama.

Nov. 9, 1995.

Rehearing Denied April 9, 1996.

William K. DelGrosso, Birmingham, for Appellant.

Jeff Sessions, Atty. Gen., Sandra Stewart, Deputy Atty. Gen., and Clayton Crenshaw, Asst. Atty. Gen., for Appellee.

TAYLOR, Presiding Judge.

The appellant, Jack Harrison Trawick, was convicted of murder made capital because the murder was committed during the course of a kidnapping. § 13A-5-40(a)(1), Code of Alabama 1975. The jury, by a vote of 10 to 2, recommended that the appellant be sentenced to death. The trial court accepted the jury's recommendation and sentenced the appellant to death by electrocution.

The state's evidence tended to show that on October 10, 1992, the partially nude body of Stephanie Gash ^* was found on the side of Grants Mill Road in Birmingham. Her mouth and nose were covered with duct tape. Dr. Joseph Embry, medical examiner for the state of Alabama, testified that she died as a result of a three-inch knife wound that entered her heart and as a result of asphyxiation caused by strangulation.

The appellant gave a detailed statement to the police in which he confessed to having murdered Stephanie Gash. He stated that he followed Gash from Eastwood Mall to her apartment. As Gash was walking from her parking space to her apartment, the appellant pulled up beside her in a van, pointed a toy gun at her, and ordered her to enter the van. As the appellant was pushing Gash into the van she hit her head on the side window of the van, and her glasses fell off. After she got in the van, the appellant tied the victim's hands with rope and put duct tape over her mouth. He drove to a secluded area where he beat Gash about the head with a hammer, strangled her, and stabbed her in the chest at an upward angle so that the knife would enter her heart. The appellant then disposed of the body by throwing it on the side of Grants Mill Road. The appellant confessed that he threw the contents of the victim's wallet out of the window as he was driving down Alton Road. He then cleaned the blood from the van at his house. The appellant's confession was corroborated by the following facts.

Police identified the body as a result of a missing persons report filed by the victim's mother on the morning the body was found. When Stephanie did not come home on the night of October 9, 1992, her mother, Mary Gash, telephoned her friends and tried to locate her. Rebecca Henderson, a friend of the victim's, came to the victim's apartment after talking with Stephanie's mother. Henderson found a pair of eye glasses, identified as belonging to the victim, lying on the ground by where she customarily parked her automobile.

Jeremy Burns testified that on October 10, 1992, he was walking with a friend down Alton Road, approximately three miles from where Gash's body was found, when he discovered a Texaco gasoline credit card with the name "Gash" on it. A search of this area resulted in the discovery of a college identification card issued to the victim and a health insurance card bearing the victim's name.

Gary Harris, an evidence technician for the Jefferson County Sheriff's Department, testified that he found a large brown-colored stain in the parking lot in front of the victim's apartment on October 22, 1992 after the appellant was questioned by police.

The appellant's Toyota van was towed to the police station on October 26, 1992. Police found in the van a piece of carpet, a tarpaulin, ball-peen hammer, and a plastic bucket that contained an 11-inch knife. Using luminol spray, police discovered blood traces on the tarpaulin, the piece of carpet, the ball-peen hammer, the tailgate of the van, and on the knife. A Ford station wagon which the appellant was known to drive was also impounded. A toy gun was found in the passenger's floorboard of that vehicle.

Steven Drexler, of the Alabama Department of Forensic Sciences, testified that two fibers found on the victim's sweater, which was recovered from the crime scene, were consistent with fibers from the carpet of the Toyota van. Also, fibers found on the duct tape that covered the victim's mouth were the same as the fibers from the carpet of the Toyota van.

I

The appellant initially contends that evidence of his confession should have been suppressed. Specifically, he contends that his confession was not voluntary because, he says, he confessed only after he placed certain conditions on his agreement to confess that he was promised would be met. He asserts that he confessed only after he was promised that the case would be a capital case and there would be a minimum of publicity.

At the suppression hearing, Lieutenant Steven Greene, of the Jefferson County Sheriff's Department, testified that he took the appellant's statement on five occasions. In the fourth statement, which was introduced at trial, the appellant confessed to murdering Gash. Greene testified that before he made the statement the appellant was advised of his Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), rights, and that no threats or promises were made in order to get the appellant to make a statement. Greene further testified that he did not promise that he could or would meet the conditions set by the appellant.

The appellant himself testified at the suppression hearing that the officers did not promise that any "conditions" would be met before he made his statement.

All extrajudicial statements are deemed involuntary. If the statement is to be received as evidence, the state has the burden of proving, by a preponderance of the evidence, that the statement was voluntary and that the accused was advised of his Miranda rights. Colorado v. Connelly, 479 U.S. 157, 168, 107 S.Ct. 515, 522, 93 L.Ed.2d 473 (1986). See also Coral v. State, 628 So.2d 954 (Ala.Cr.App.1992); Jackson v. State, 562 So.2d 1373 (Ala.Cr.App.1990).

The appellant does not argue that he was not advised of his constitutional rights as articulated in Miranda. Thus, our inquiry centers on whether the appellant's statement was voluntary. To determine whether a statement is voluntary, this court must examine the "totality-of-the-circumstances." Boulden v. Holman, 394 U.S. 478, 89 S.Ct. 1138, 22 L.Ed.2d 433 (1969); Fikes v. Alabama, 352 U.S. 191, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957).

Here, the appellant maintains that his giving the statement was conditioned on the granting of certain requests that he outlined to police. As the state contends, a similar issue was addressed by this court in Siebert v. State, 555 So.2d 772 (Ala.Cr.App.), aff'd, 555 So.2d 780 (Ala.1989), cert. denied, 497 U.S. 1032, 110 S.Ct. 3297, 111 L.Ed.2d 806 (1990). In Siebert, this court stated:

"The appellant also argues that his statements should not have been allowed into evidence because, he says, they were involuntary; specifically, he says they were conditioned on Captain Hurst's alleged promise that he would not be asked certain questions concerning 'details' of the murders. Captain Hurst, however, testified that appellant told him that he would admit to the killings, but would not go into any details until he got back to Alabama, a condition to which Captain Hurst agreed. Appellant now claims that Captain Hurst's agreement to this condition constituted a 'promise' or inducement for his statement, thereby rendering his statements involuntary and inadmissible.

"The question of undue influence in obtaining admissions or confessions is determined by an examination of all attendant circumstances, with the inquiry focusing on whether the accused's free will and rational intellect were overborne at the time of his confession. Hubbard v. State, 500 So.2d 1204, 1220 (Ala.Cr.App.), aff'd, 500 So.2d 1231 (Ala.1986), cert. denied, 480 U.S. 940, 107 S.Ct. 1591, 94 L.Ed.2d 780 (1987); McCammon v. State, 499 So.2d 811, 815 (Ala.Cr.App.1986); Seawright v. State, 479 So.2d 1362, 1367 (Ala.Cr.App.1985); Agee v. State, 465 So.2d 1196, 1198 (Ala.Cr.App.1984). 'The factual inquiry centers on (1) the conduct of law enforcement officials in creating pressure and (2) the suspect's capacity to resist that pressure.' Seventeenth Annual Review of Criminal Procedure, 76 Geo.L.J. 676 (1988). 'If an individual's "will was overborne" or if his confession was not "the product of a rational intellect and a free will," his confession is inadmissible because coerced.' Townsend v. Sain, 372 U.S. 293, 307, 83 S.Ct. 745, 754, 9 L.Ed.2d 770 (1963). 'The types of promises which may make a defendant's statement involuntary are, e.g., promises of leniency, promises to bring the defendant's cooperation to the attention of the prosecutor, the disclosure of incriminating evidence to the accused, and silence in response to the defendant's offer to talk if his statement would not be used against him.' Siebert v. State, [562 So.2d 586 (Ala.Cr.App.1989) ]. However, this court has made it clear that a statement 'is not rendered involuntary by a promise of benefit that was solicited freely and voluntarily by the defendant himself.' Rowe v. State, 421 So.2d 1352, 1355 (Ala.Cr.App.1982); Eakes v. State, 387 So.2d 855, 860 (Ala.Cr.App.1978).

"Although appellant has attempted to transform Captain Hurst's actions into a promise of benefit or inducement, it is readily apparent from the testimony that this was simply a condition placed by the defendant on the extent of his confession at that time. Captain Hurst neither promised appellant anything nor induced him in any way. He was merely acknowledging the terms which the appellant had unilaterally imposed. Appellant had the right to remain silent. He also had a right to limit any statement which he [chose] to make. Captain Hurst was only honoring this right. Any benefit which may have accrued from this agreement was solicited freely and voluntarily by the appellant himself, and thus, failed to render his confession involuntary. Acc...