Banks v. State

570 So. 2d 1282, 1990 Ala. Crim. App. LEXIS 1075, 1990 WL 152219
CourtCourt of Criminal Appeals of Alabama
DecidedAugust 24, 1990
DocketCR 89-300
StatusPublished
Cited by2 cases

This text of 570 So. 2d 1282 (Banks v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Banks v. State, 570 So. 2d 1282, 1990 Ala. Crim. App. LEXIS 1075, 1990 WL 152219 (Ala. Ct. App. 1990).

Opinion

TYSON, Judge.

The appellant was charged by two separate indictments with capital murder and robbery in the first degree, in violation of §§ 13A-5-40(a)(2) and 13A-8-41, Code of Alabama 1975. By agreement of the parties, the capital murder indictment was amended to charge the appellant with the lesser offense of murder, § 13A-6-2, Code of Alabama 1975, and the two indictments were then joined for trial. The jury thereafter found the appellant “guilty as charged in the indictment,” as amended, on both charges — murder and robbery in the first degree. The trial judge sentenced the appellant to 30 years’ and 10 years’ imprisonment, respectively, to be served consecutively, and ordered him to pay $25 to the Alabama Crime Victims Compensation Fund.

I

The appellant argues that his initial police interview was conducted without the benefit of the Miranda warnings. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thus, he claims that the statement he gave at that time, along with a subsequent statement and all evidence collected as a result of his statements, should not have been admitted at trial. Furthermore, he contends that, without this evidence, the State lacked sufficient evidence to convict him of the charged crime.

On February 10, 1988, the day following the murder of Ed Pham, the police tracked down this appellant. The appellant lived with his grandfather in Muscoda, Alabama.

Sergeant James Earl Smith, with the Jefferson County sheriff’s department, was the first to come in contact with this appellant. Sergeant Smith knocked on the appellant’s grandfather’s door, and the appellant came to the door. Sergeant Smith introduced himself. Sergeant Smith told the appellant that he “needed to talk with him, and would he come out so we could talk in the car.” (R. 60.) Sergeant Smith testified that the appellant agreed to do so.

While the appellant and Sergeant Smith were sitting in the police car in front of the appellant’s grandfather’s house, Sergeant Wayne Lowe, with the sheriff’s department, arrived. According to Sergeant Lowe, Sergeant Smith stated that he had been asking the appellant where he had been on the previous evening. Sergeant Smith, during this interview, asked the appellant to go inside and get his tennis shoes. After the appellant returned, Sergeant Smith asked him “if he wouldn’t mind coming to the Sheriff’s Department with us.” (R. 185.) The appellant agreed to accompany Sergeants Smith and Lowe.

Sergeant Lowe testified that when Sergeant Smith asked the appellant to come to the sheriff’s department that he was considered a “suspect” at that time. According to Sergeant Lowe, the appellant was questioned further at the sheriff’s department. Based on these interviews, the appellant was placed under arrest. Cf. Taylor v. Alabama, 457 U.S. 687, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982).

As a result of the interviews on February 10, 1988, Sergeants Lowe and Smith returned to the appellant’s grandfather’s house. They obtained written consent from the appellant’s grandfather to search the premises. In the back yard, they found a smoldering fire. In the ashes, they discovered some metal straps, a chain, a lock, and a silver dollar. They believed those items were from an antique wooden trunk that had been taken from the victim’s home.

The appellant was then reinterviewed on February 12, 1988. The appellant was informed of his Miranda rights and he signed a waiver of rights form. The appellant made a statement in which he confessed to killing Ed Pham.

[1284]*1284The gist of the appellant’s argument is that he was “in custody” when Sergeants Smith and Lowe questioned him on February 10, 1988. He claims that he was not advised of his Miranda rights. Thus, he argues that the statement was illegally obtained and that all evidence which was collected thereafter was tainted by the illegally obtained statement.

Initially, we note that the appellant’s confession on February 12, 1988, was given after he voluntarily, intelligently, and knowingly waived his Miranda rights. No improper promises, threats, or inducements were made to get the appellant to confess to the murder. See Hutchinson v. State, 516 So.2d 889, 894 (Ala.Cr.App.), cert. denied (Ala.1987).

The issue then is whether the statement on February 10, 1988, was improper and, if so, whether the statement on February 12, 1988, and the other evidence subsequently obtained was improperly admitted at trial.

It is well settled that evidence discovered as a result of an illegally obtained statement is inadmissible. Ex parte Callahan, 471 So.2d 463, 465-66 (Ala.1985), quoting Wong Sun v. United States, 371 U.S. 471, 487-88, 83 S.Ct. 407, 417-18, 9 L.Ed.2d 441 (1963). Likewise, a statement which is “the progeny of a previous illegally elicited confession” is a “fruit of the poisonous tree” and is inadmissible in evidence against an accused. Callahan, 471 So.2d at 464, 467.

This court addressed a similar fact situation in Harris v. State, 376 So.2d 773 (Ala.Cr.App.), cert. denied, 376 So.2d 778 (Ala. 1979). Following a rape and robbery, the police found a coat and cap in the prosecu-trix's apartment. Several informants told the police that the clothing belonged to the appellant Harris. Later, the police officers who were investigating the crime saw Harris walking down the street. They asked Harris if he could identify the coat and cap. Harris stated the coat was his, but that the cap was not. One of the officers then asked the appellant if he would go with them to police headquarters. The appellant agreed and went there “on his own free will.” After he and the officers had arrived at the police station and the officers had talked with him further and had compared his fingerprints with some prints taken at the crime scene, Harris was arrested and charged with the commission of the crime. No evidence was introduced that Harris was ever read his Miranda rights.

In Harris, we attempted to determine whether the appellant was “in custody” at the time he was confronted by the police and then asked to go to the police station:

“Miranda is limited to custodial interrogations only. Custodial interrogation is defined as ‘questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ Miranda, [384 U.S. at 444,] 86 S.Ct. at 1612. This is what was meant in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), by reference to an investigation which had ‘focused’ on the accused. Miranda, [384 U.S. at 444, fn. 4,] 86 S.Ct. at 1612, fn. 4.”

Harris, 376 So.2d at 774. See also Johnston v. State, 455 So.2d 152, 155-56 (Ala.Cr.App.), cert. denied (Ala.1984).

The standard of review to be applied in cases of this nature was set out in Finch v. State, 518 So.2d 864, 871 (Ala.Cr.App.1987), cert. denied (Ala.1988):

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Related

Smolder v. State
671 So. 2d 757 (Court of Criminal Appeals of Alabama, 1995)
Dutton v. State
587 So. 2d 1046 (Court of Criminal Appeals of Alabama, 1991)

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Bluebook (online)
570 So. 2d 1282, 1990 Ala. Crim. App. LEXIS 1075, 1990 WL 152219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/banks-v-state-alacrimapp-1990.