Twymon v. State, 7 Div. 564
| Citation | 358 So.2d 1072 |
| Decision Date | 18 April 1978 |
| Docket Number | 7 Div. 564 |
| Parties | Noble TWYMON v. STATE. |
| Court | Alabama Court of Criminal Appeals |
George N. Sims, Jr., Talladega, for appellant.
William J. Baxley, Atty. Gen. and Jean Williams Brown, Asst. Atty. Gen., for the State, appellee.
This is an appeal from an indictment and conviction of murder in the first degree. The jury fixed sentence at life imprisonment. The appellant is represented at trial and on appeal by court appointed counsel.
Three issues are presented for our review: (1) The admissibility of evidence that a law enforcement officer "taped" an interview with the appellant; (2) the question of the capability of the appellant to make a knowing and voluntary waiver of his constitutional rights in view of his limited mental capacity; and (3) whether a tape recorded confession was inadmissible because it contained "highly prejudicial leading questions."
Reduced to the basic facts, the evidence reveals that on the evening of March 12, 1977, the appellant and Samuel Louis Smoot had a fight when Smoot attempted to prevent the appellant from beating Rosie Mae Taylor. Ms. Taylor lived with the appellant's brother and the appellant was under the impression that she was "mistreating" his brother. As the fight came to an end the appellant ran way but stated that he would return.
Later that night, James Ashley, an off-duty auxiliary sheriff's deputy stopped by Reeves' Grocery Store in Talladega County. The appellant was already there and told Ashley that he had shot someone. The appellant voluntarily gave Ashley the single-shot twelve gauge shotgun which he was carrying at his side.
The appellant led law enforcement officers to a cornfield and showed them the body of Samuel Smoot. Five spent shotgun shells were found near or around the body. Smoot had been shot by a shotgun once in the back and once in the back of the head. In the opinion of Dr. Carlos Rabren, Assistant Director for the Department of Toxicology and Criminal Investigation, State of Alabama, "the end of the barrel (of the shotgun) would have been in contact with the scalp tissue at the time the round was fired". Another toxicologist testified that the round was fired from a distance of not more than five feet. Either wound could have produced death.
After being advised of his Miranda rights the appellant freely and voluntarily gave statements admitting his guilt to the Sheriff of Talladega County and an investigator for the Sheriff's office.
In questioning the investigator for the Sheriff's office, the District Attorney asked:
Initially we note that the question called for admissible evidence, the answer was responsive, and objection was made only after the answer had been given. The objection was therefore untimely. Gamble, McElroy's Alabama Evidence (3rd ed. 1977), § 426.01(3), p. 793. In this situation a motion to strike or exclude the answer was necessary.
Even if timely objection had been interposed, evidence that the accused merely made a statement is admissible. The "statement" was not characterized as a "confession" or an "inculpatory or incriminating admission". The acts, declarations, and demeanor of an accused, before or after the offense, are admissible against him. Willingham v. State, 261 Ala. 454, 74 So.2d 241 (1954).
Moreover the fact that subsequent proof disclosed that the confession was not improperly induced cured any possible error in the admission of the objected to remark. Crenshaw v. State, 225 Ala. 346, 142 So. 669 (1932); Vincent...
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Brown v. State
...jury instructed to disregard it. Consequently, the State did not remove the matter from the jury's consideration. See: Twymon v. State, Ala.Cr.App., 358 So.2d 1072 (1978). See also: Burton v. State, Ala.Cr.App., 364 So.2d 394, cert. denied, Ala., 364 So.2d 397 Lastly, appellant argues that ......
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People v. Cheatham
...the defendant's IQ is as low as fifty-one, Grayson v. State, 438 S.W.2d 553 (Tex.Crim.App., 1969), and fifty-seven, Twymon v. State, 358 So.2d 1072 (Ala.Crim.App., 1978), but other courts have excluded confessions in cases in which the defendant's IQ is as high as seventy-four. Commonwealth......
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Carroll v. State
...not be laid. Tillison v. State, 248 Ala. 199, 27 So.2d 43 (1946); Herring v. State, 242 Ala. 85, 5 So.2d 104 (1942); Twymon v. State, 358 So.2d 1072 (Ala.Cr.App.1978); Campbell v. State, 341 So.2d at 740; C. Gamble, McElroy's Alabama Evidence § 200.02(4)(e) (3rd ed. 1977). The appellant's s......
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Freeman v. State
...his guilt. Curry v. State, 203 Ala. 239, 82 So. 489 (1919); White v. State, 133 Ala. 122, 32 So. 139 (1902)." Twymon v. State, 358 So.2d 1072, 1074 (Ala.Cr.App.1978). See also Golden v. State, 439 So.2d 813 (Ala.Cr.App.1983) (it is permissible for an officer to tell an appellant during ques......