Williams v. State

Decision Date20 September 1991
Docket NumberCR-89-633
Citation627 So.2d 985
PartiesHerbert WILLIAMS, Jr. v. STATE.
CourtAlabama Court of Criminal Appeals

Al Pennington, Mobile, for appellant.

James H. Evans, Atty. Gen., and Sandra Stewart and Melissa Math, Asst. Attys. Gen., for appellee.

TAYLOR, Judge.

The appellant, Herbert Williams, Jr., was convicted of the robbery and murder of Timothy Hasser, made a capital offense because the murder was committed during the course of a robbery. Section 13A-5-40(a)(2), Code of Alabama 1975. The appellant, a 19-year-old at the time of the offense, requested and was denied treatment as a youthful offender. The jury, in a nine to three vote, recommended a sentence of life in prison without the possibility of parole. The trial court overrode the jury's recommendation and sentenced the appellant to death by electrocution.

On appeal, the appellant does not question the sufficiency of the evidence; thus we will only briefly recite the facts presented at trial. The state's evidence tended to show the following: On November 2, 1988, the body of the victim, Timothy Hasser, was found in the back of his 1980 Porsche automobile. He had been shot three times in the head. Officer Mark Harrell, of the Jackson Police Department, stated that he was on routine patrol on the evening of November 2, 1988, when he spotted a white Porsche in the emergency lane on Highway 43, by the McCorquodale Bridge, near the city of Jackson, in Alabama. Harrell approached the car, and a man, who Harrell identified as the appellant, exited from the driver's side. The appellant told the officer that he had a "lemon of a car" and that he needed to go to a gasoline station. Officer Harrell followed the appellant to a nearby station. While he was following the Porsche, Harrell noticed a thick dark liquid, which he later identified as blood, dripping from the rear hatchback area of the car. Harrell also noticed that the appellant was not familiar with the standard transmission in the Porsche. When they arrived at the station, Harrell asked the appellant for his driver's license. While the officer was standing beside the car, he looked in the car and saw a white male covered with blood lying unconscious in the hatchback portion of the car. Harrell asked the appellant what had happened to the man. The appellant said that he had been in a fight. Upon closer inspection, Harrell determined that the man was dead. Weights were attached to each of the dead man's ankles and his face and hair were saturated with blood. Officer Harrell then handcuffed the appellant and read him his Miranda 1 rights three separate times. He said that the appellant did not appear to be under the influence of drugs or alcohol and that no offer of reward was made to him in order to induce him to make a statement. At this time, the appellant stated that he and the victim had been involved in a drug deal in Demopolis which had gone "sour." Drug dealers shot the victim and told the appellant that he could live because he was a black man. One of the dealers handed the appellant the gun, a .38 caliber handgun, and told him to dispose of the body. The appellant further stated that the gun was under the front seat of the car and that his fingerprints were "all over it." A search made of the appellant's person revealed six empty cartridges in his pocket. Some of the clothes that the appellant was wearing were also taken into custody. The blood on the clothes was identified as the same type as the victim's.

The appellant made three statements to the police. The details of the statements varied, although in each statement the appellant maintained that the victim was shot by drug dealers. Assistant Chief Charles Burge of the Jackson Police Department testified that the appellant made a statement to him when the appellant arrived at the police station on the evening of November 2, 1988. The statement made by the appellant at this time was similar to the statement he made to Officer Harrell. Assistant Chief Burge also testified that pursuant to a search warrant he had searched the appellant's home. The appellant was living with his aunt at the time of the murder. A search of the appellant's bedroom revealed a book entitled New I.D. in America, a personal diary, and weights similar to those found on the victim. Captain Burge read the following excerpts from the diary found in the room in which the appellant had been living:

" 'Sunday, October 30, 1988. I will search this house for that gun. If I find it Monday, then I'm going to catch Larry to Prichard [sic]. I'll then walk to my destination. If the car is not there, well, I will break in from the back and wait. After doing the job, leave the place in my new car. Come back after I have gotten the gears right, load up and dump the body.'

"....

" 'Monday, the 31st, 1982 [sic], Porsche 928, dump body, Tuesday, one, get as much money as I can, get car,' R-E-G, abbreviated, 'from Chatom, go Dixon Mills, hit Pine Hill.' "

Investigator Michael Barnett, with the Alabama Bureau of Investigation, testified that two days after the murder, the appellant asked to speak with him. After Barnett apprised the appellant of his Miranda rights, the appellant gave him a detailed statement of his movements for several days before the murder and of his efforts to dispose of the body. In this statement the appellant said that he and the victim had been involved in several drug deals in the past. He stated that after this one big deal, the victim told him that he would give him his Porsche and $7,500.00. The appellant also stated that the victim had been shot by drug dealers who had allowed him, Williams, to live.

Evidence from several witnesses established that the appellant had told them that someone "owed" him a Porsche automobile. One witness also stated that the appellant asked him to help him scare the victim into giving the appellant his Porsche. The appellant was also seen with a gun on the afternoon of the murder. Evidence also revealed that the appellant had been in the victim's home prior to the murder. His fingerprints were found in the victim's attic. In one statement the appellant told police that he had broken into the home of the victim and that when the burglar alarm went off he hid in the attic.

Evidence was also presented that the appellant wrote out a confession while he was in jail several days after his arrest. Captain Vincent Richardson of the Mobile Police Department testified that Golliday Miller, who had been in the same cell as the appellant, called the Police Department and asked to meet with the investigators who were in charge of the Hasser murder. Captain Richardson and another officer met with Miller. Miller gave them a copy of a confession written, he claimed, by the appellant. The confession was later identified by a handwriting expert as having been written by the appellant. In this confession, the appellant wrote that he had been forced to shoot the victim by drug dealers. The dealers held a gun to his head and said that if he didn't shoot Hasser, they would shoot him. The other details were similar to those in the other three statements made by the appellant. Richardson stated that Miller was not working for the state and that the state made no deal with him to get a statement from the appellant. The appellant presents the following issues on appeal.

I

Initially, the appellant contends that the trial court erred in permitting the confession, identified as having been written by the appellant, to be received into evidence. He cites several reasons for this argument. First, he contends that there was no showing that he was read his Miranda rights prior to the statement's being written. Secondly, the appellant maintains that since Miller did not testify at trial, his right to confront his accusers, as guaranteed by the Sixth Amendment, was violated. The record reflects that Miller approached the police with a confession he maintained was written by the appellant. At the motion hearing to suppress the confession, Miller was called to the stand and refused to testify. Captain Richardson testified several times that Miller was not working with them to obtain any confession from the appellant and that no promises were made to Miller to obtain the confession.

Prior to the admittance of a confession made to law enforcement officers, the prosecution must prove that the statement was voluntary and that the appellant was given his Miranda rights. See Holder v. State, on return to remand, 584 So.2d 872 (Ala.Cr.App.1991); Magwood v. State, 494 So.2d 124 (Ala.Cr.App.1985), aff'd, 494 So.2d 154 (Ala.), cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986). However, these constitutional safeguards do not apply when a statement has been made to a person who is not an law enforcement officer. "According to Terry v. State, 397 So.2d 217 (Ala.Cr.App.1981), Miranda warnings are not required in instances where inculpatory or otherwise admissible statements are made to persons who are not law enforcement officers or their agents." Warrick v. State, 460 So.2d 320, 323 (Ala.Cr.App.1984). See also Connolly v. State, 500 So.2d 57 (Ala.Cr.App.1985), aff'd, 500 So.2d 68 (Ala.1986); Traylor v. State, 439 So.2d 178 (Ala.Cr.App.1983). In Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990), the defendant made a statement to a cellmate who was in fact an undercover police officer. The United States Supreme Court held that the statement should have been received into evidence. The Supreme Court stated:

"The warning mandated by Miranda was meant to preserve the privilege during 'incommunicado interrogation of individuals in a police-dominated atmosphere.' That atmosphere is said to generate 'inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.' 'Fidelity to the doctrine announced in Miranda requires that it...

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