Washington v. State

• Decision Date: 05 August 1971
• Docket Number: 4 Div. 334
• Citation: 251 So.2d 592,287 Ala. 289
• Parties: James WASHINGTON v. STATE of Alabama.
• Court: Alabama Supreme Court

Page 592

251 So.2d 592

287 Ala. 289

James WASHINGTON v. STATE of Alabama.

4 Div. 334.

Supreme Court of Alabama.

Aug. 5, 1971.

Rehearing Denied Sept. 2, 1971.

Smith & Smith, Dothan, for appellant.

MacDonald Gallion, Atty. Gen., and W. Mark Anderson, III, Special Asst. Atty. Gen., for the State.

LAWSON, Justice.

James Washington was convicted in the Circuit Court of Houston County of the first degree murder of Benjamin O. Sailors, a police officer of the City of Dothan. The jury fixed his punishment at death. Judgment and sentence were in accord with the verdict.

Our review is controlled by the automatic appeal law applicable to cases where the death sentence is imposed.--Act 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cumulative Pocket Part to Volume Four, 1940 Official Code, and in the 1958 Recompiled Code (unofficial) as Title 15, §§ 382(1) et seq.

Sailors was shot to death on the morning of August 19, 1967, apparently by a person whom he surprised while engaged in the act of removing copper wire from a storage place of the City of Dothan.

The police ascertained within a short time after his death that Sailors had been killed by a .22 long rifle bullet fired from a .22 caliber pistol. Many persons were questioned and many pistols were tested, but the investigating officers obtained no evidence which tended to point to any person as being the killer of Sailors prior to the time Washington came into the picture in December of 1967.

On the night of December 10, 1967, Lamar Hadden, an agent of the Alabama Alcoholic Beverage Control Board, saw a whom he later identified as Washington driving a 1960 De Soto automobile at a point in the vicinity of the storage place where Sailors' body had been found.

The rear end of the automobile appeared to Hadden to be heavily laden, so he followed the De Soto for several blocks before Washington drove it into a dead-end street, where Hadden shot at the tires on the De Soto. Washington, according to Hadden, 'shot back four or five times with a small caliber pistol, after ramming my car.' After 'ramming' his automobile into the side of Hadden's automobile, Washington drove his automobile off the traveled part of the street and thereby eluded Hadden.

Hadden, in reporting the incident to the police, gave them a description of the automobile, as well as the number of the license tag which was on it. It was a Georgia license tag.

A warrant for Washington's arrest for the offense of assault with intent to murder Lamar Hadden was obtained on the night of the incident referred to above, that is, on the night of December 10, 1967.

The Dothan police immediately notified law enforcement officials of Georgia of the Hadden incident and gave them a description of Washington's automobile and the number of its license tag.

At about ten o'clock that night, December 10, 1967, a Georgia State Trooper or Highway Patrolman located Washington's automobile on U.S. Highway 84 at a point approximately two miles east of Donaldsville, Seminole County, Georgia. At the time the officer reached the automobile no one was in it.

The automobile was returned to Dothan that night and was placed in the 'pound' of the City of Dothan.

Washington was in Tallahassee, Florida, on Monday morning, December 11, 1967, from which place he apparently made a telephone call to his wife, who was in their home town, Cairo, Grady County, Georgia. In that telephone conversation or in some other way Washington learned that he was being sought by Sheriff Jimmy Hicks of Grady County, Georgia, and Sheriff Dan White, of Seminole County, Georgia.

After getting that information, Washington called Sheriff Hicks and in the telephone conversation it was agreed that the Sheriff would drive to Tallahassee to transport Washington to Cairo. Sheriff Hicks drove to Tallahassee and located Washington without any difficulty. Sheriff Hicks and Washington drove back to Cairo, arriving there at approximately one o'clock on the afternoon of December 11, 1967. Washington was not under arrest. He accompanied the Sheriff voluntarily but was detained in and around the Sheriff's office for a short time awaiting the arrival of police officers of the City of Dothan.

Police officers of the City of Dothan, including Lt. Deal and Detective Dillard, carried with them to Cairo the warrant which had been issued the previous night which charged Washington with the offense of assault with intent to murder Larmar Hadden. Lt. Deal placed Washington under arrest for the offense charged in the warrant and told him 'that he had a right to remain silent, and that anything he said could be used against him in Court, and that he had a right to consult with an attorney and have him present during questioning, and that if he couldn't afford an attorney, hire an attorney, one would be appointed for him; and if he answered any questions at that time that he could stop at any time until he could employ an attorney.' The language just quoted is substantially that which the Supreme Court of the United States has said must be given by law enforcement officers before questioning a person who has been taken into custody or otherwise deprived of his freedom of action in any significant way. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. That admonition is frequently referred to as the Miranda warning and we will hereinafter so refer to it.

Washington was not questioned while in Cairo, although when confronted with the warrant for his arrest he said in effect that he did not know what it was all about.

Washington had signed a waiver of extradition before the Dothan officers arrived in Cairo and shortly after his arrest he was returned to Dothan and placed in the jail of that city in the early part of the night of Monday, December 11, 1967.

After he was placed in jail on Monday night, December 11th, Washington was asked if he wanted an attorney or 'a chance to call an attorney,' to which question he replied 'that his wife or some of his relations would obtain an attorney for him.' He was not questioned further on that night.

On Monday morning, December 11, 1967, or on Tuesday morning, December 12th, at about 8:30, Sheriff A. B. Clark of Houston County, Alabama, acting under the authority of a search warrant, searched Washington's automobile and found in the trunk nineteen rolls of wire which weighed 760 pounds. There are tendencies in the evidence to the effect that the wire found in the automobile trunk was similar to wire owned by the City of Dothan which was missing from the storage facility on the day after the Hadden incident, Monday, December 11, 1967. The evidence supports a reasonable inference that at this point the investigating officers became aware of the possibility that Washington might have been connected with the killing of Sailors.

Thereafter, while confined to the Dothan jail on the charge of assault with intent to murder, Washington was arrested on warrants charging him with grand larceny of the wife and with leaving the scene of an accident.

Washington was questioned by Deal and Dillard on Tuesday, December 12th; Wednesday, December 13th; and Friday, December 15, 1967. The record tends to show that he was not questioned on Thursday, December 14, 1967, the day on which he was driven to Montgomery for a polygraph test which did not materialize.

Dillard and Deal were examined out of the presence of the jury (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. 593; Duncan v. State, 278 Ala. 145, 176 So.2d 840) in regard to their questioning of Washington. We will summarize their testimony taken in that manner.

On Tuesday, December 12, 1967, Dillard and Deal gave to Washington the so-called Miranda warnings and then questioned him for an hour or two about the assault with intent to murder charge then pending against him. At the outset of the questioning Washington denied being in Dothan on the night of December 10, 1967, when the assault with intent to murder Lamar Hadden was alleged to have occurred. Later he admitted that he had been in Dothan on that night and also admitted that he had been involved in an incident with Hadden when he fired a .32 caliber pistol which he threw out of his automobile somewhere between Dothan and Columbia as he drove away from Dothan. In the course of the questioning the interrogating officers questioned Washington considerably about the pistol. Washington inquired, in effect, as to how it would help him to tell them the location of the pistol. His question was not answered. The officers simply told him that they needed the pistol as a part of their investigation of the assault with intent to murder charge.

Dillard and Deal next questioned Washington on Wednesday morning, December 13, 1967, for a period of time not exceeding two hours. He was again given the Miranda warnings, including his right to have an attorney present during the questioning. When told that he could call an attorney by telephone, Washington replied that he did not wish to make such a call, 'that his wife, his people, would employ an attorney for him.' Washington was told that his wife would be permitted to visit him in jail. When his wife did come to visit him Washington told her 'to tell his sister to employ an attorney for him.' Despite that interest in obtaining an attorney employed by members of his family, Washington never indicated in any way that he objected to being questioned in the absence of an attorney who represented him. The questioning on Wednesday morning related to the pistol which Washington had fired during the Hadden incident on the night of December 10, 1967. In this connection Deal testified: 'Well, during this questioning, he stated that he was afraid that if he turned the gun over to us that it would bring on more trouble. And we--myself or Dillard one asked him what kind of trouble and he said h...