Williams v. State, 6 Div. 761

CourtAlabama Court of Criminal Appeals
Citation461 So.2d 834
Docket Number6 Div. 761
PartiesDanny Ray WILLIAMS v. STATE.
Decision Date31 May 1983

Orson L. Johnson, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Edward Carnes and William D. Little, Asst. Attys. Gen., for appellee.

BOWEN, Presiding Judge.

On March 21, 1981, the defendant, after months of stalking James A. Taylor pursuant to a contract for hire, shot Taylor with a sawed-off shotgun at point blank range. He was indicted for the capital offense of "(m)urder in the first degree when the killing was done for a pecuniary or other valuable consideration or pursuant to a contract or for hire." Alabama Code Section 13A-5-31(a)(7) (1975). At the guilt-finding phase of his trial, a jury found the defendant "guilty of the capital offense as charged in Count One of the indictment." At the sentence-determining phase, the jury fixed the defendant's punishment at death. The trial judge then held the hearing mandated by Sections 13A-5-32 and -33, accepted the death penalty as fixed by the jury, and sentenced the defendant to death.

The trial and sentencing proceedings were conducted in accordance with Beck v. State, 396 So.2d 645 (Ala.1981), following the decision of the United States Supreme Court in Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Nine issues are presented on appeal.

The facts of this case were succinctly recounted by the trial judge in his findings of fact required by Section 13A-5-33:

"On March 21, 1981, the defendant, Danny Ray Williams, and Walter 'Red' Hunt, after months of stalking the victim, James A. Taylor, pursuant to a contract for hire completed their task. The defendant shot Mr. Taylor with a sawed-off shotgun at point blank range from the passenger side of his automobile into the vehicle of Mr. Taylor while Mr. Taylor was driving along Interstate 59. The consideration for this task was $1,500.00 which was promptly paid."


The defendant's motion for a change of venue, which was only supported by "clippings from local newspapers", was properly denied. Newspaper articles giving publicity to the crime charged are not alone sufficient to show prejudice warranting or requiring a change of venue. Anderson v. State, 362 So.2d 1296, 1298 (Ala.Cr.App.1978); 22 C.J.S. Criminal Law Section 196(2) (1961). "(A)s a general proposition, routine pretrial publicity disseminated in a criminal case does not per se afford a sufficient basis upon which to grant a defendant's motion for change of venue." Annot., 33 A.L.R.3d 17, 39-40 (1970). "(T)he existence of widespread publicity alone does not entitle a defendant to a change of venue." Dolvin v. State, 391 So.2d 666, 674 (Ala.Cr.App.1979), affirmed, 391 So.2d 677 (Ala.1980). Here, there was no showing that the publicity either prejudiced any individual juror or caused pervasive hostility within the community. Murphy v. Florida, 421 U.S. 794, 802-03, 95 S.Ct. 2031, 2037, 44 L.Ed.2d 589 (1975). For these reasons, the motion was properly denied.


The defendant's amended motion to quash the indictment was properly denied. "The judicial reconstruction accomplished in Beck (396 So.2d 645) was procedural and therefore constitutional", and did not violate the separation of powers doctrine. Clisby v. State, 456 So.2d 95 (Ala.1983); Potts v. State, 426 So.2d 886 (Ala.Cr.App.1982), affirmed, Ex parte Potts, 426 So.2d 896 (Ala.1983).


The defendant's amended demurrer to the indictment was properly denied.

The indictment charged "murder in the first degree when the killing was done for pecuniary or other valuable consideration." Section 13A-5-31(a)(7) (emphasis added). This section is a part of Alabama's new criminal code. The criminal code became effective January 1, 1980. The crime was committed in March of 1981.

The criminal code repealed Section 13-1-70 of the 1975 Alabama Code defining the degrees of murder. Under the criminal code the degrees of murder are abolished and homicide is divided into murder, manslaughter and criminally negligent homicide. Sections 13A-6-2, -3, -4. However, the capital offense defined in Section 13A-5-31(a)(7) retains the crime of murder in the first degree as a component of that capital offense despite the fact that there is no crime of murder in the first degree defined by the criminal code.

Potts, supra, makes it clear that a 1975 code offense definition can exist as a component of a capital offense even after that particular code section has been repealed or superseded by a provision in the new criminal code.


When the record is silent on whether or not the trial judge ascertained the qualifications of the jurors as required by Sections 12-16-6 and -60, this Court presumes the trial judge did his duty and did it correctly. Washington v. State, 81 Ala. 35, 38, 1 So. 18 (1887). The silence of the record raises no presumption of error. Washington; Durden v. State, 394 So.2d 967, 977 (Ala.Cr.App.1980), cert. quashed, 394 So.2d 977 (Ala.1981). Additionally, the judgment entry reflects that the jury "was duly empaneled and sworn according to law."


The defendant argues that his extra-judicial confession was involuntary and in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Essentially, he contends that the actions of the law enforcement officers led him to believe it would be in his best interest to cooperate and give a statement and that their conduct and words generated the hope that his case would be "lightened" if he cooperated.

The standards for appellate review of a trial judge's determination of the admissibility of a confession are as follows: (1) The test for voluntariness involves a consideration of the totality of the circumstances. Haynes v. Washington, 373 U.S. 503, 513-14, 83 S.Ct. 1336, 1342-43, 10 L.Ed.2d 513 (1963). (2) "The admissibility of confessions is for the court, their credibility is for the jury." Phillips v. State, 248 Ala. 510, 520, 28 So.2d 542 (1946). (3) Where the voluntariness inquiry presents conflicting evidence and the trial judge finds that the confession was voluntarily made, great weight must be given his judgment. "(W)here there is a genuine conflict of evidence great reliance must be placed upon the finder of fact." Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 281, 4 L.Ed.2d 242 (1960). (4) This finding will not be disturbed on appeal unless the appellate court is convinced that the conclusion is palpably contrary to the great weight of the evidence and manifestly wrong. Harris v. State, 280 Ala. 468, 470-71, 195 So.2d 521 (1967). (5) Even where there is credible testimony to the contrary, if the evidence is fairly capable of supporting the inference that the rules of freedom and voluntariness were observed, the ruling of the trial court need only be supported by substantial evidence and not to a moral certainty. Thompson v. State, 347 So.2d 1371, 1375 (Ala.Cr.App.), cert. denied, 347 So.2d 1377 (Ala.1977) and cases cited therein. "Review of the court's action is limited to determining whether its finding was clearly erroneous." United States v. Greer, 566 F.2d 472, 473 (5th Cir.1978). Applying these principles, we have reviewed the testimony adduced both on the motion to suppress and at trial, and find that the defendant's confession was voluntary and in compliance with constitutional standards.

The murder occurred on March 21, 1981. The defendant was arrested at his residence at approximately 6:00 on the evening of March 22nd. He voluntarily signed a written waiver of his Miranda rights and a written consent to search his automobile before he was taken to the Birmingham office of the Alabama Bureau of Investigation. ABI investigator Marvin Roy testified At the ABI office, the defendant was again advised of and waived his Miranda rights. He gave a handwritten statement which he signed at 7:37 that night. At 7:46 p.m. the defendant was warned of and waived his Miranda rights a third time and gave a taped statement which lasted until 7:55 p.m. The defendant was not further interrogated that night. At trial, neither the defendant's handwritten nor his taped statement taken on March 22nd was introduced into evidence.

that the defendant was nervous but appeared "alert, aware, cooperative" although the defendant later told the officers that he had "taken drugs". The defendant was not questioned on the way to ABI headquarters.

Before the defendant gave any statement, Investigator Roy told him that they "knew what had happened and he needed to get it off his chest." The defendant was shown the shotgun used in the murder. Roy told the defendant that they knew that other people were involved and "possibly" mentioned one of them by name. The defendant was also told that the officers "had other information which indicated his involvement and the fact that he ... actually pulled the trigger."

Investigator Roy testified that they confronted the defendant with the evidence against him and "led him to believe, ... that it was in his best interest that we go ahead and get the facts, as far as his actual involvement, because we knew he didn't act alone." Roy also testified that he "never made any specific statement that it would be better for (the defendant) to go ahead and tell ... about this." Roy stated, "I didn't try to coerce him, as far as making any promises or any promise of any kind of thing on his part, to coerce the statement."

Roy tried to appeal to the defendant's "sympathy" by explaining that "this was a very serious matter and something that needed to be brought out if there were others involved and, certainly, he didn't need to take it by himself." After Roy indicated that he did not offer the defendant "any hope of reward or tell him it would be better or worse for him if he did not make the taped statement", the trial judge remarked:

"He has said that no one told him it would be better or worse...

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