Yarber v. State
| Citation | 375 So.2d 1212 |
| Decision Date | 19 April 1977 |
| Docket Number | 6 Div. 195 |
| Parties | Samuel YARBER v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Gordon L. Ladner, Bessemer, Frederick A. Erben, Birmingham, for appellant.
William J. Baxley, Atty. Gen. and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.
Appellant was convicted of murder in the first degree and sentenced to life imprisonment in the penitentiary. At arraignment attended by counsel appellant pleaded not guilty. At the time the sentence was imposed, appellant gave notice of appeal. He was found to be indigent and a free transcript was furnished him and trial counsel was appointed to represent him on appeal.
Appellant filed a motion to quash the indictment on the ground that he had been promised immunity from prosecution in exchange for his testimony against Danny Ray Miles who was also charged with murder in the first degree in the shooting death of Ronald Harvell White. Miles was convicted At the pretrial hearing on the motion to quash the indictment the voluntariness of a statement made by appellant was also considered by the trial judge.
of murder in the first degree and sentenced to life imprisonment in the penitentiary. Miles appealed to this court and his case was affirmed on February 1, 1977 and certiorari was denied on April 1, 1977.
The State and counsel for the appellant entered into a stipulation as follows:
"That on November 12, 1975, defendant testified as a witness for the State and that the defendant was not at that time nor at any prior time advised of his rights under Miranda, either by the Court or any officer."
At the hearing on the motion to quash the indictment the following testimony was developed:
TESTIMONY OF ALBERT WALLACE
Wallace testified that he is a Sergeant in the Birmingham Police Department, assigned to homicide. He had been so employed for twenty-one (21) years. He began his investigation into the killing of Clarise Knabe on the morning of November 4, 1975.
Wallace testified that he came to know Samuel (Bud) Yarber on the morning of November 7, or November 8, 1975. Wallace stated he saw Yarber at the Birmingham City Jail at about 3:30 or 4:00 a. m. He further stated that he began questioning Yarber about this particular case in a confined office in the presence of approximately six other officers. Wallace stated that he purposely did not advise Yarber of his rights.
During this period of questioning of defendant by Wallace and approximately six other officers, the defendant was considered a suspect in the murder case. During this period of questioning the defendant related nothing regarding any happenings on the night of November 3 or November 4. He in fact denied knowledge of the robbery or murder or kidnapping. Wallace questioned the defendant in the presence of the other six officers for approximately 30 to 45 minutes. During this period of questioning the defendant seemed to possess his faculties but was very emotional and at times would cry. At the close of this 30 to 45 minute questioning period, all the officers but Wallace left the room. Wallace then talked with the defendant for a period of approximately 30 minutes. During this period of time the defendant made some statements to Wallace which led him to believe that the defendant had some knowledge of the happenings regarding the killing of Clarise Knabe. At the end of the 30 minute period involving Wallace and the defendant, Wallace left the room and informed the other officers that the defendant had indicated that he did not participate in the murder, but that he had knowledge of it, and he was not going to relate it to the officers unless they promised him that he would not be arrested. Wallace testified that shortly after making this statement to the other officers, the other officers agreed not to arrest the defendant. All the officers, at this point, returned to the room and each officer in each other's presence told the defendant that if he cooperated with them and gave them a story that they would each promise him that nothing would happen to him and that he would not be arrested or charged with any offenses arising out of this particular case. At this point the defendant stated that he desired to consult an attorney, but Wallace told him that he didn't think the defendant needed an attorney and that it was not necessary that the defendant call an attorney. The defendant gave the officers a statement.
Wallace testified that at the time the officers made their promise to the defendant that he would not be arrested or charged, that they did not have a case against Danny Ray Miles nor did they have a case against the defendant. Wallace stated that in his judgment as based on his experience as a Police Officer the defendant gave the officers his statement solely based on the promises that were made him by the officers. These promises were made
on November 7 or November 8, 1975, were never withdrawn, and these promises were in effect when the defendant testified at the preliminary hearing of Danny Ray Miles on November 12, 1975. Wallace testified that prior to testifying at the preliminary hearing the defendant was purposely not advised of his rights for the sole reason that the officers thought that if he was advised of his rights he would not testify. Wallace stated that the defendant never withdrew from his agreement with the officers. The defendant was arrested subsequent to testifying at the preliminary hearing.
Wallace testified that he had talked to Danny Miles prior to talking to the defendant in that Miles had given him no information concerning the homicide. Wallace had received information from a woman who lived with Danny Miles that Miles and the defendant had been together on November 3, 1975. Wallace stated that at the time the defendant was brought in for questioning he was a suspect and that he did not advise the defendant of his Constitutional rights nor did any other officers in his presence advise the defendant of his rights.
Wallace stated that before the promises were made to the defendant by the officers that Yarber indicated to Wallace that he was with Miles on the night in question. Wallace testified that the defendant kept telling him that he was afraid of Danny Miles and that he was afraid he would be killed. Wallace assured him that if he told the truth and that if he was not involved he would be protected. Wallace testified that none of the officers qualified his agreement with the defendant on the basis that he did not have the authority to grant immunity.
In the statement given to the officers the defendant stated that he did, in fact, observe everything that had happened from the beginning to the end and that he was there as an unwilling party. After having made his statement to the officers he was no longer a suspect.
Wallace testified that the reason the defendant was not a suspect was because he had cooperated with the officers. The defendant remained a suspect up until the point that he gave a statement to the officers and cooperated with the officers as a result of the promises made to him by the officers. Wallace testified that in his judgment the defendant relied on the promises given him when he gave his statement to the officers and when he testified at the preliminary hearing.
Wallace testified that it was the defendant's version of what happened rather than the fact that he told the officers anything that removed him as a suspect in the case.
Wallace testified that it was a combination of the defendant's cooperation and the substance of his statement that removed him as a suspect.
Mr. Smith testified that he was a Sergeant with the Jefferson County Sheriff's Office and had been so employed for twenty-two (22) years.
As a result of Smith's investigation, Danny Miles and the defendant were arrested. The defendant was arrested after Smith had received information that the defendant had been in the company of Danny Miles on the evening of November 3 or 4, 1975. At the time the defendant was arrested, he was a suspect in the case. Smith and Sergeant Paul Couch of the Sheriff's Office personally arrested the defendant. Prior to arresting the defendant Smith and Couch decided that they would not give the defendant the Miranda warning because they did not want him to freeze up and not say anything. Smith and Couch did pick up the defendant and did not advise him of his rights. The defendant was taken to the Birmingham City Hall and carried to an office inside the building where Officers At this time Officers Hurst and Couch played the role of the "bad guys" and Officer Wallace played the role of the "good guy." After about 30 minutes of this type of questioning Officer Wallace suggested that the other officers leave and allow him to talk to the defendant alone. After a period of about 15 minutes, Officer Wallace came out of the office and made a statement to the other officers, both as a group and then individually. Wallace told Smith and the other officers that the defendant would tell the whole story if they would guarantee him that he would not be arrested. All of the officers guaranteed that they would not arrest him and each officer individually conveyed this agreement to the defendant.
Smith, Couch, Hurst, Wallace, Gillespie, and a Mr. Brad Morris were present.
It was Smith's judgment that defendant relied on the promises that were made to him by the officers in giving a statement to the officers. At the time he made the statement to the officers he was a suspect. There was some conversation among the officers regarding arresting the defendant as a material witness and placing him under bond so that he would not leave the State. This plan was abandoned by the officers because they were afraid that they would "scare the defendant off." It was then...
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Yarber v. State
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