Melton v. State

790 S.W.2d 322, 1990 Tex. Crim. App. LEXIS 83, 1990 WL 67492

• Court: Court of Criminal Appeals of Texas
• Decided: May 23, 1990
• Docket: 569-84
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

McCORMICK, Presiding Judge.

Appellant was convicted of the offense of murder of her former lover. Punishment was assessed at ten years’ confinement and a fine of $5,000.00.

On appeal, the Beaumont Court of Appeals found that appellant’s oral statement was properly admitted into evidence in that appellant was not in custody at the time of the making of the statement. The Court of Appeals also found that appellant’s oral statement was made after she voluntarily and knowingly waived her privilege against self-incrimination. Melton v. State, (Tex. App.-Beaumont, No. 09-83-057 CR, delivered March 21, 1984). We granted appellant’s petition for discretionary review to examine these issues.

The facts were correctly summarized in the Court of Appeals’ opinion:

“On [Friday] October 26, 1979, officers of the Port Arthur Police Department responded to a call reporting a dead body found on a construction road in Port Arthur. On arriving, the officers found the body of Terrell Marsh, which appeared to have been shot by a shotgun. A three-inch, Magnum, fired shotgun shell was recovered. A few days later [on Monday, October 29], Detectives Woods and Hughes went to the Port Neches plant of Texaco refinery, where appellant was employed, and asked her to accompany them to the police station in Port Arthur for questioning concerning the death of Terrell Marsh.

“The detectives testified appellant freely went with them to the station, that she was not a suspect at that point, and they wished to question her because they had information that suggested appellant may have been the last person to see the deceased alive. Later in the trial, appellant took the stand and did not dispute that she left the Texaco plant freely.

“The officers testified she was free to leave the police station in Port Arthur until at a point in the questioning when she implicated herself in the killing. The officers said appellant first denied any knowledge of Marsh’s death, but after determined questioning, admitted that she had been having an affair with Marsh, a fellow Texaco employee, which terminated in March, 1979; that she told her husband, who became quite upset and at some point stated Marsh had to be killed. She and her husband drove to Lamar University in Port Arthur on the fatal night and found Marsh’s parked car. The husband, Mike, got into the trunk of their car with the death weapon. When Marsh came out to his car, appellant told him to follow her, which he did, to the construction road. Mike, the husband, got out of the trunk, shot Marsh several times, then took Marsh’s wallet to make it appear the motive was robbery. The wallet was later cut up and disposed of in a drainage ditch.

“After questioning at the police station, appellant signed a consent to have her home searched, and went with the officers to her home where they recovered the weapon which later testimony identified as the shotgun which fired the shell recovered at the scene. Appellant was then taken back to the police station, a magistrate was called who gave her another warning and she was made aware of murder charges against her. She was asked to sign a written statement but refused after talking to someone on the telephone.” Slip opinion pp. 2-3. [material in brackets added]

Prior to trial the trial court held a hearing on the voluntariness of appellant’s statements to the officers and made the following findings of fact, inter alia:

“The defendant voluntarily accompanied Detective Woods and Hughes to the Port Arthur Police Department on October 29, 1979. The defendant was not in custody and was free to leave the police department at any time. Prior to any questioning, the defendant was admonished of the [Miranda warnings] ...

“The defendant understood all of her rights contained in the above warnings and freely and voluntarily gave the officers an inculpatory oral statement concerning the homicide of Terrell Marsh. The oral statement was made while the defendant was not imthe custody of any police officers and the statement was made while the defendant was not being illegally restrained by the officers. The defendant was not in custody and was not a suspect until after she made the oral statement about this offense. The oral statement was not given as a result of any threats, promises, psychological coercion, or undue influence exerted on the defendant by any police officer. The oral statement was not given by the defendant as a result of any threat or promise concerning the charging or abstinence of charging the defendant’s husband with the offense of capital murder. The defendant was not threatened, coerced or promised anything prior to giving the statement.

“The oral statement given by the defendant led the police officers to the finding of the shotgun, State’s Exhibit # 2, which was secreted and previously undiscovered and was the instrument with which Terrell Marsh was killed.”

The trial court made the following conclusions of law:

“The oral statement given by the defendant to Detective Woods is admissible as evidence before the jury under Article 38.22, Sec. 3(c). The State has proven beyond a reasonable doubt that the confession was voluntarily and freely given while the defendant was not in custody of any police officers.”

In her petition, appellant argues that the facts show that appellant was in custody from the time she was taken from her place of employment. She argues that this “custody” is demonstrated by several facts:

(1) after the officers requested that she accompany them to the police station, she requested that she be allowed to take a loan payment book to her husband and the officers refused;

(2) she was not given the option of driving her own car to the police station;

(3) she was taken into the police station through a rear door which the detectives had to unlock and which “clicked” when it was closed behind her;

(4) she was escorted into an interrogation room and the door was closed behind her; and

(5) she was never informed that she was free to go.

Findings by a trial court should not be disturbed absent a clear abuse of discretion. Dancy v. State, 728 S.W.2d 772 (Tex. Cr.App.1987). A review of the record shows that there is ample evidence to support the findings of the trial court.

The record shows that Detective Woods testified that they sought to interview appellant, not as a suspect in the case but because their investigation revealed that appellant was probably the last person to see the victim alive. He further testified that they picked up appellant at her place of employment at approximately 10:30 a.m. When appellant requested that she be allowed to take the credit union payment book to her husband so he could make a payment during the lunch hour, Woods informed her that she would be finished at the police station by noon and could take it to her husband after the interview was completed. Woods testified that appellant did not have to accompany them to the police station. He further testified that although he did not inform appellant that she had the option of driving her own vehicle to the station had she made such a request, he would have allowed her to do so. During the interview, appellant did not request to talk with anyone but if she had made such a request, he also would have allowed her to do so. Woods testified that up until she admitted her culpability in the murder appellant was free to leave.

A person need not be under formal arrest in order to be in custody. In the past this Court has examined these types of cases in light of four factors: whether probable cause to arrest existed; whether the defendant was the focus of the investigation; the subjective intent of the police; and the subjective belief of the defendant. Turner v. State, 685 S.W.2d 38 (Tex.Cr. App.1985); Ruth v. State, 645 S.W.2d 432 (Tex.Cr.App.1979).

“We are unaware of any rule of law which forbids lawfully constituted officers of the law from requesting persons to accompany them, or of providing transportation to the police station or some other relevant place in furtherance of an investigation of a crime. Nor are we aware of any rule of law that prohibits police officers from voluntarily taking a person to the police station or some other relevant place in an effort to exonerate such person from complicity in an alleged crime. Nor are we aware of any rule of law which forbids one to reject such request. If the circumstances show that the transportee is acting only upon the invitation, request, or even urging of the police, and there are no threats, express or implied, that he will be taken forcibly, the accompaniment is voluntary, and such person is not then in custody. In other words, under those circumstances, such person has not ‘been taken into custody or otherwise deprived of his freedom of action in any significant way.’ Miranda v. Arizona, supra." Shiflet v. State, 732 S.W.2d 622 (Tex.Cr.App.1985).

In Shiflet and Dancy, we went so far as to find that:

“Where a person voluntarily accompanies police officers, who are then only in the process of investigating a crime, to a certain location, and he knows or should know that the police officers suspect he may have committed or may be implicated in committing the crime, we are unable to hold that under the circumstances such a person is restrained of his freedom of movement. Under those circumstances, he is not in custody.” Dancy v. State, supra, at p. 778. (emphasis added)”

Clearly, there was no custodial interrogation in the instant case where all the evidence reflects that up until the time appellant completed her oral statement, the officers did not suspect her of being implicated in the crime at all. All of the evidence shows that they were interviewing her only because they had reason to believe that she had been the last person to see the victim alive. Given all of the above, we find that both the trial judge and the Court of Appeals were correct in their findings that appellant was not in custody when she made her oral statement. Penry v. State, 691 S.W.2d 636 (Tex.Cr.App.1985); Turner v. State, supra; Clark v. State, 627 S.W.2d 693 (Tex.Cr.App.1982) (opinion on rehearing). Appellant’s first ground for review is overruled.

Appellant also argues that the trial court abused its discretion by finding as a matter of fact that the oral statements made by appellant were made after a voluntary and knowing waiver of her privilege against self-incrimination. Appellant contends that the interrogation techniques used by the officers were so coercive that appellant was “forced” to confess.

We find that we need not address the merits of this issue. Both the state and the federal privilege against self-incrimination are aimed at preventing compelled, involuntary testimonial incrimination by a person who has been taken into custody. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Thomas v. State, 723 S.W.2d 696 (Tex.Cr. App.1986). Only in instances when a statement stems from custodial interrogation must the State demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination. Miranda v. Arizona, supra. Indeed the Supreme Court wrote in Miranda:

“Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. State of Illinois, 378 U.S. 478, 491, 84 S.Ct. 1768, 1765 [12 L.Ed.2d 977]. When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the factfinding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.” Miranda v. Arizona, 384 U.S. at 477-478, 86 S.Ct. at 1629-1630.)

When appellant made the statement the investigation had not yet shifted from the investigatory to the accusatory or custodial stage. As such, there was no compulsion and appellant’s Fifth Amendment rights had not come into play. Granviel v. State, 723 S.W.2d 141 (Tex.Cr.App.1986). Thus we need not and cannot make a determination as to the voluntariness of any waiver of appellant’s right against self-incrimination. Guerrero v. State, 605 S.W.2d 262 (Tex.Cr.App.1980). This ground for review is overruled.

The judgments of the Court of Appeals and the trial court are affirmed.