Hubbard v. State

215 So. 2d 261, 283 Ala. 183

• Court: Supreme Court of Alabama
• Decided: October 17, 1968
• Docket: 6 Div. 457
• Status: Published

Opinions

KOHN, Justice.

The defendant was indicted for murder in the first degree on February 16, 1967. He was found guilty and his punishment was fixed at death. On February 24, 1967, judgment was rendered in accordance with the verdict of the jury. A motion for a new trial was overruled on August 28, 1967. The defendant thereafter perfected this appeal.

The appeal here is under the automatic appeal law applicable to cases where the death sentence is imposed. Act No. 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cumulative Pocket Part to Vol. Four, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, § 382(1) et seq.

The facts in this case arise from the strangulation death of a woman on March 26, 1966. The evidence shows that she was killed between 4:00 o’clock and 6:30 o’clock of the evening of the 26th of March. When the body was discovered it was partially nude and the head had been badly beaten. The woman’s body was lying in a pool of blood. The defendant was arrested at his home at around 10:30 on this same night. The detective who arrested him said that when he saw the defendant at his home that night, the defend-had scratches on his body, blood on his belt and on his blue jeans, and that he had no shirt on. After he was arrested, he was taken to the City Hall and placed in the “robbery room,”' this being around 11:00 o’clock at night. Several law enforcement officers were in and out of the presence of defendant during such time. One of these officers testified that he questioned the defendant during this time. He also testified that before he questioned him, he warned the defendant that he had the right to remain silent, and that if he made a statement it might be used against him. He also testified that he told the defendant that there was a telephone he could use if he wished to call an attorney, and if the defendant wanted, he would make the call for him. After this, the defendant made some incriminating statements. However, they were not offered in evidence and, therefore, there is no question raised on this appeal as to their admissibility.

At approximately 12:30 o’clock, some one and one-half hours after the defendant had been in custody, he was required to stand on a piece of newspaper and remove his clothing. There were several law enforcement officers present at this time, as well as the State Toxicologist. The State, during the course of the trial, offered in evidence these articles of clothing of the defendant, and they were admitted in evidence over the timely objection of the defendant. Also, the State offered and the court admitted over the timely objection of the defendant, in evidence several hairs which were recovered from the defendant during the disrobing process. Several of these hairs were identified at the trial as being the pubic hairs of a person of the negroid race, and two others as being the pubic hairs of a person of the non-negroid race. The latter two hairs were also shown to be similar to the pubic hairs of the victim.

The main contention of the appellant on this appeal is based upon the admitting in evidence of these articles of clothing and these hairs recovered from him during the disrobing process.

It is not necessary to pursue certain aspects of this case that may run afoul of the Constitution of the United States as now construed by the federal courts, including the United States Supreme Court. However, if this appeal is not reversed under the law of Alabama, a necessity for reversing it may be required by the case of United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, citing Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. Wade adopted the rule of Cochran relative to whether or not an offer of counsel was rejected. “* * * there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.”

In a matter such as this, where the death penalty is inflicted, we are charged by the law of this State with a duty to examine with care the proceedings, and to see that the defendant is not denied his constitutional rights. The statute governing this appeal, usually termed the “automatic appeal statute” makes this a solemn duty on the court to examine the entire record and evidence offered against the defendant. Act No. 249, approved June 24, 1943, General Acts 1943, p. 217, carried in the 1955 Cumulative Pocket Part to Vol. Four, 1940 Official Code, and in the 1958 Recompiled Code as Title 15, § 382(1) et seq.

It is apparent from the record that the police officers involved in this arrest and prosecution of the defendant performed their duties well and fairly in the main. Likewise, the able district attorney and his excellent staff. The trial court was an example of carefulness and prudence in conducting the trial, yet the errors committed were fatal.

This court has long held, as early as 1889 and as late as 1960, that the protection under the Constitution of Alabama is two-fold in regard to the issues here— one protects the defendant from being compelled to testify against himself, the other protects the defendant from being compelled from doing any affirmative act that may result in the admission of evidence tending to incriminate him. Nothing in the record discloses that the defendant was warned that the affirmative act of disrobing himself could result in evidence that could be used against him. Here, it was used against him. The deputy district attorney prosecuting the case frankly admitted, as follows:

“While this defendant was under arrest and in custody of the Officers of the Police Department he was required to, or either voluntarily, or both, took off all of his clothes, and those clothes were shaken and certain material came out of them and were examined microscopically by type and by screen tests and by other tests to determine whether or not there was blood on his clothes that were taken from him, and where the blood was. There was a hair- — ”

Also, the State Toxicologist testified as follows in response to this question by the prosecuting attorney:

“Q. He was clothed. Did you have him remove his clothes or garments from his body there on that occasion? [Emphasis supplied.]

“A. Yes, sir, I did.”

We are unable to conclude from the record that the action of the defendant in disrobing himself was voluntary. Although there may have been sufficient legal evidence upon which the jury based its verdict, we cannot presume that illegal evidence did not permeate the verdict. Supreme Court Rule 45 has no field of operation here. The test is not whether the illegal evidence influenced the jury, but whether it might have unlawfully influenced the jury in the verdict returned. Eaton v. State, 278 Ala. 224, 177 So.2d 444; Oliver v. State, 232 Ala. 5, 166 So. 615.

Here, fatal errors pierced the cloak of protection violating basic and fundamental rights provided this defendant by the Constitution of Alabama. Section 6, Article 1, Constitution of Alabama, 1901. This section provides, in part, that an accused “shall not be compelled to give evidence against himself.” This provision has been construed as protecting a person from being required, against his will, from doing any positive act tending to operate as evidence against himself in a criminal case, and it has been held, and is the law of this State, that it does not violate this rule for another person to do an act against the will of the defendant which relates to his person and thereby cause defendant to reveal evidence later used against him. Aaron v. State, 271 Ala. 70, 82, 122 So.2d 360, quoted with approval Hunt v. State, 248 Ala. 217, 27 So.2d 186; Cooper v. State, 86 Ala. 610, 6 So. 110; Myhand v. State, 259 Ala. 415, 66 So.2d 544.

It may appear that these holdings are incompatible and are equivalent to legal hair-splitting, for it may be argued, how is a defendant harmed when his constitutional rights are violated by compelling him to take an affirmative act which results in evidence used against him, when it would have been legal to take the same evidence from him through another’s actions? Another way of stating an argument could be that in a particular case, who is harmed when a guilty defendant is convicted by illegal evidence. It has been so argued throughout history that, why object to convicting the guilty by illegal means when the same objective could be reached by legal means. The principle that “the ends justify the means” has no place in constitutional law. Countless skeletons repose in the historical dungeons of the world giving mute testimony to the error of such argument. Today, it could be the guilty convicted by illegal means! Who knows whether tomorrow it would not be the innocent? The Alabama Constitution protects methods, as well as results, and above all, the Constitution must be upheld. We require no mandate from the Supreme Court of the United States.

An early decision by this court exactly in point, construing a similar section in an earlier Constitution to Article 1, § 6 of the Constitution of 1901, is the case of Cooper v. State, 86 Ala. 610, 6 So. 110. Chief Justice Stone, in discussing this section of the Constitution, among other things, said:

“ * * * It doubtless had its birth in the abhorrence with which confessions, coerced by inquisitorial torture, were regarded alike in England and America. * * * »

In that case, an attempt was made to get the defendant to make footprints in order to get a comparison between them and footprints left by a burglar. The defendant refused to do so, and as they were trying to get the testimony before the jury that he refused to do so, the court enumerated the principle by saying, "it would have been unlawful to force the witness to give (or make) evidence against himself.”

In the case of Hunt v. State, 248 Ala. 217, 27 So.2d 186, it was held that in this-State a person cannot be required against his will to do any positive act tending to operate as evidence against himself in a criminal case. In this decision, the court dwelled once more on what was not a violation of this rule, by stating another person could do an act against the will of the defendant which relates to his person, and thereby cause to be revealed matter material as evidence against him, as by an illegal search where he was required to-produce nothing, to testify to nothing. But here, once again, this court reiterated' the principle that an affirmative act or declaration made by a person not acting’ voluntarily is not admissible against him.

Leaving Hunt v. State, supra, we find that this same question was passed upon by the court in Myhand v. State, 259 Ala. 415, 66 So.2d 544. The question there was-whether or not defendant-appellant was-compelled to remove his clothes. The court decided that under the evidence the trial court did not err in permitting the State to introduce the clothing in evidence for the reason that, under the evidence adduced, the trial court was amply justified in finding that appellant was not compelled to-take off his clothes, but that he did so-readily and voluntarily.

The next question decided by Myhand,. supra, was that “smears” taken from a. certain part of the body of the appellant was not illegally done in that the appellant was not forced or coerced to permit the-smears to be made, the court approved Hunt, v. State, supra, by stating, “it seems to be well settled in this state that facts ascertained and opinions formed by an examination of an accused without his consent or when his consent to the examination has been improperly obtained are not inadmissible on that account.” Therefore,, it is readily clear that Myhand did not overrule directly, or by implication, that part of Hunt v. State, supra,- which said that one could not be compelled to take affirmative action and create evidence against himself.

Leaving Myhand, we come to Aaron v. State, decided by this court on July 14, 1960, and reported in 271 Ala. 70, 122 So. 2d 360. Here the court met the question involved in this case squarely, and also reiterated the exception:

“Section 6 of Article 1 of the Constitution of this state provides, in part, that an accused ‘shall not be compelled to give evidence against himself.’ This provision has been construed as protecting a person from being. required against his will from doing any positive act tending to operate as evidence against himself in a criminal case. But it does not violate this rule for another person to do an act against the will of the defendant which relates to his person, and thereby cause to be revealed matter material as evidence against him. * * * ”

This same decision, Aaron v. State, supra, citing earlier decisions, stated: “The fact that the shirt, trousers and socks were taken from the defendant by officers did not render them inadmissible.

The case of Aaron v. State, 273 Ala. 337, 139 So.2d 309, which again came before this court, convinces us that the principle reaffirmed in the first Aaron v. State, supra, case was not overruled. Among other things on the second appeal, this court said:

“ * * * the undisputed evidence is that she identified him before he was asked to repeat the phrase. Also, there is no evidence that appellant was compelled to do anything.”

Having referred to some words which the defendant was supposed to have used while attacking her.

The question raised on the second Aaron appeal was that the defendant’s rights under § 6 of the Alabama Constitution of 1901 were violated in that he was “compelled to give evidence against himself” because he was asked to repeat certain words. The decision in Seals v. State, 271 Ala. 142, 122 So.2d 513, is not in conflict with the Aaron decision under the particular facts of the case. Seals was not compelled to repeat any words which the prosecutrix said were used by her assailants during the attack upon her.¹

In conclusion, we can go back to Hunt v. State, supra, where the court in summary says, 248 Ala. at page 225, 27 So.2d at page 194:

“From the foregoing authorities it is apparent that an affirmative act or declaration made by a person not acting voluntarily is not admissible against him. But that facts ascertained and opinions formed by an examination without his consent or when his consent to the examination was improperly obtained are not inadmissible on that account. Spicer v. State, supra; Banks v. State, supra.”

Life and liberty are too precious to be lost by a violation of a fundamental constitutional right. This was a horrible and most regrettable crime, but we must be careful not to do an unjust thing- — -fail to uphold the Constitution of Alabama. The Constitution would be a mockery if not upheld.

Basic rights of the defendant, as provided by the Constitution of Alabama, as construed by this court in many decisions, having been violated, as above noted, this cause is reversed and remanded.

Reversed and remanded.

LIVINGSTON, C. J., and SIMPSON and COLEMAN, JJ., concur.

1 . In Schmerber v. State of California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, the court held, under the facts of the case, that the constitutional rights of the defendant had not been violated by taking compulsory blood test from him (16 L.Ed.2d 1332). For a review of the authorities on the question of “physical examination or exhibition of, or tests upon, suspect or accused, as violating rights”, see: Hayes v. United States, 10 Cir., 367 F.2d 216 (1966), where it was held that removing substance from defendant’s knees and from around his finger nails and from his shoes was not unreasonable under the facts of the case. Also, see: 28 A.L.R.2d 1115.

For purposes of identification of accused by voice demonstration, see 16 A.L.R.2d 1322, and for a later review of rulings of voice demonstrations, see the note to Schmerber v. California; 16 L.Ed. 2d 908, at page 1344, paragraph 7, where a voice demonstration by a rape suspect, under the particular facts of the ease, was held to constitute a denial of due process in the case of Palmer v. Peyton (1966 C.A.4 Va.) 359 F.2d 199.

In Wade v. United States, a 1966 case also, 5 Cir., 358 F.2d 557, a suspect already arrested and already having counsel was held to have been denied the right to counsel under the Sixth Amendment, where he was subjected to a lineup in the absence of his counsel and made to repeat words uttered at the time of the robbery as a voice demonstration.

A comprehensive review of this question will be found in the opinion of the Court when Wade’s case was decided by the Supreme Court of the United States (1967), United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149.

From Brown v. Standard Casket Mfg. Co., 234 Ala. 512, 519, 175 So. 358, 364, is a definition of the word “act” — "Act denotes the affirmative. * * * Act carries the idea of performance.”