Wallace v. State

• Decision Date: 05 April 1973
• Citation: 290 Ala. 201,275 So.2d 634
• Parties: Kenneth WALLACE v. STATE of Alabama. SC 262.
• Court: Alabama Supreme Court

Page 634

275 So.2d 634

290 Ala. 201

Kenneth WALLACE v. STATE of Alabama.

SC 262.

Supreme Court of Alabama.

April 5, 1973.

C. Delaine Mountain, Tuscaloosa, for appellant.

William J. Baxley, Atty. Gen. and Otis J. Goodwyn, Jr., Asst. Atty. Gen., for the State.

PER CURIAM.

This case was transferred from the Court of Criminal Appeals to the Supreme Court of Alabama on February 8, 1973, in compliance with the provisions of Section 1 of Act 74, approved December 22, 1971, 1971 Acts of Alabama, 3rd Special Session, page 4282. See Cumulative Pocket Part to Volume 4 of the 1958 Recompiled Code where the provisions of Section 1 of Act 74, supra, are carried as Section 111(11a), Title 13.

Appellant was indicted for and convicted of committing the offense of robbery. He was sentenced to imprisonment in the penitentiary of this state for a period of ten years.

On November 15, 1971, Mrs. Debbie Singley was an employee of W. Pate Waldrup, a photographer, who maintained a studio at 583--17th Street in Tuscaloosa, Alabama. Waldrup lived in Birmingham, and Mrs. Singley was in charge of his Tuscaloosa studio.

The evidence shows that at about 4:45 o'clock on the afternoon of November 15, 1971, three young colored males entered the studio. They asked for a job and were advised by Mrs. Singley, in effect, that she was not sure that they could obtain employment at the studio. Shortly thereafter, one of the young men drew a gun. Mrs. Singley was thrown to the floor. She was blindfolded. Her hands were tied behind her back, and her legs were bound. Telephone wires in the studio were cut by the intruders.

Mrs. Singley's glasses, billfold and its contents, $10.00 and keys, were taken as were cash and checks totaling $190.00 which belonged to W. Pate Waldrup. The main insistence for reversal is that the trial court erred in admitting the alleged confession in evidence in that there was not 'an adequate showing on the part of the State that the confession was voluntarily given.'

The settled rule of this Court is that all extrajudicial confessions are presumed to be involuntary and, therefore, are prima facie inadmissible with the onus resting on the prosecution to repel the imputation of undue influence unless the attending circumstances affirmatively disclose the voluntariness of the confession. Any inducement of profit or benefit held out; any hope engineered or encouraged that the prisoner's case will be lightened, meliorated, or more favorably dealt with if he will confess; either of these is enough to exclude the confession thereby superinduced. Any words spoken in the hearing of the prisoner which may, in their nature, generate fear or hope render it not only proper but necessary that a confession made within a reasonable time afterwards shall be excluded, unless it is shown by clear and full proof that the confession was voluntarily made after all trace of hope or fear had been fully withdrawn or explained away and the mind of the prisoner made as free from fear, intimidation or hope for reward as if no attempt had ever been made to obtain such a confession. The true test is whether, under all the surrounding circumstances, a confession has been induced by a threat or a promise, express or implied, operating to produce in the mind of the prisoner apprehension of harm or hope of favor. 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. Womack v. State, 281 Ala. 499, 205 So.2d 579; Harris v. State, 280 Ala. 468, 195 So.2d 521; Bush v. State, 282 Ala. 134, 209 So.2d 416; Beecher v. State, 288 Ala. 1, 256 So.2d 154; Duncan v. State, 278 Ala. 145, 176 So.2d 840; Edwardson v. State, 255 Ala. 246, 51 So.2d 233; Stewart v. State, 231 Ala. 594, 165 So. 840.

At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent; that anything he said can be used against him in court; that he has the right to have counsel present at the interrogation; that if he is indigent and cannot afford to pay a lawyer the court will appoint a lawyer to represent him during the interrogation. Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. See Washington v. State, 287 Ala. 289, 251 So.2d 592.

Whenever a motion is made for the question of the voluntariness of the confession to be determined outside of the presence of the jury, the motion should be granted by the trial court. In such a hearing the trial judge sitting alone should make a determination upon a proper record of the issue of voluntariness. At such a hearing the defendant may take the stand and testify for the limited purpose of making a record of his version of the facts and circumstances under which the confession was obtained. By so doing, the defendant will not waive his right to decline to take the stand in his own defense on the trial in chief nor will he waive any of the other rights stemming from his choice not to testify. If the confession is held voluntary by the trial court and admitted in evidence, the jury shall consider all the facts and circumstances surrounding the taking to the confession in determining the weight or credibility which it will give the confession. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Sims v. Georgia, 385 U.S. 538, 87 S.Ct. 639, 17 L.Ed.2d 593; Duncan v. State, supra; Rudolph v. Holman (D.C.), 236 F.Supp. 62; Taylor v. State, 42 Ala.App. 634, 174 So.2d 795; Bennett v. State, 46 Ala.App. 535, 245 So.2d 570. At the request of appellant, Detective South was examined outside the presence of the jury in regard to the events which led up to the making of the confession. Jackson v. Denno, supra; Duncan v. State, supra; Bennett v. State, supra.

South testified that the Miranda warnings were given at the very outset of the interrogation and that appellant was then advised that he was a suspect 'along with Charlie McClyde, Jr., and Larry Wilder in robbing Waldrup Studio located at 583--17th Street back on 11/15/71.'

South stated categorically that neither he nor anyone in his presence made any promise to appellant regarding his confession. He was not threatened nor told it would be better or worse for him to confess. He was not offered a reward or hope of reward or coerced in any way to get him to confess.

But despite those categorical statements, the record shows that during his examination outside the presence of the jury, South was asked the following questions and gave the following answers:

'Q. Did you promise to help him in any way concerning probation if he would confess?

A. I did not promise to help him in any way concerning probation. It's possible that it--maybe the statement was made 'if the probation officer asked if you give (sic) a statement and told the truth that we could tell him that you did', but it was made clear to the Defendant that not in any way could we promise him anything.'

Q. You mentioned earlier possibly making, or making, some statement to him in regard to if the probation officer talked with y'all that y'all would--what was that you said?

A. I said that there was not any promises made to the defendant.

Q. I know, but didn't you . . .. (Interrupted)

A. As a policy I always tell the Defendant on interviewing that I cannot promise him anything to make a statement. The most I could do is if the Probation Officer asks me if the Defendant made a statement and if we felt like he told us the truth, we could either tell him he did or we did not feel like he told the truth.

Q. In your opinion, was this Defendant told that?

A. As a policy I usually tell a Defendant that. I cannot say that it was or was not.

Q. In your best judgment--if that is your policy, in your best judgment then this Defendant would have been told that.

A. It's possible he could have been told that.'

At this point counsel for appellant moved to exclude the confession referred to as 'the statement' on the ground that: 'The mere reference to discussing his cooperation or noncooperation with a probation officer is a promise of a reward.'

Counsel for appellant elected not to elicit testimony from appellant at the hearing held outside the presence of the jury. In fact, no one was questioned on that occasion other than South.

We think it was adequately shown by South's uncontradicted testimony that the Miranda warnings were given to appellant; that he understood them and made an intelligent waiver of his right to have counsel present at the interrogation.

We cannot say that South's testimony at the hearing outside the presence of the jury demonstrated that the attending circumstances affirmatively disclose the voluntariness of the confession. See Bush v. State, supra. So the burden was on the State to show the voluntariness of the confession. The appellant insists that South's testimony last quoted above in answer to the quoted questions shows that the confession was not voluntarily given but resulted from a promise of reward made by South to the appellant. We disagree.

South did not deny that he made the statements of which complaint is made to the appellant during the course of the interrogation. He testified, in effect, that 'as a policy' he usually makes such a statement to a suspect and that it is possible that he did so during the course of the interrogation of appellant. We think, therefore, that the burden being on the State to show the voluntariness of the confession that we should assume that the statement was made by South during the interrogation which resulted in the confession. See Womack v. State, 281 Ala. 499, 205 So.2d 579.

But we do not believe that the statement made by South to appellant in regard to the probation officer was sufficient standing alone to render appellant's in-custody...