Alabama Supreme Court 1960343.
TAYLOR, Presiding Judge.
The appellant, Michael O'Shields, appeals his conviction for murder, a violation of § 13A-6-2, Code of Alabama 1975. He was sentenced to life in the penitentiary.
The state's evidence tended to show that in March 1990 the appellant murdered his ex-wife, Ruby Oliver. Betty Hemphill testified that she had attended Riley College with Ruby in 1990. She stated that one Wednesday in March 1990 the appellant picked Ruby up at school around noon and that she did not see the victim after that day.
Michael Alston Nichols, a friend of the appellant's, testified that one afternoon in March 1990 he went to the appellant's trailer and the appellant told him that he had killed Ruby. Nichols further testified that at the time he did not believe what the appellant was telling him. The appellant then directed Nichols to his bedroom where, Nichols said, the appellant had Ruby's body wrapped in a blanket. Nichols testified that he told the appellant that he would not telephone the police and he then left. Nichols stated that the appellant came to his house with Ruby's body about 10:30 p.m. that evening to get some cement blocks. He said that he accompanied the appellant when he dumped Ruby's body with cement blocks into the Alabama River. Ruby's body was never recovered.
O'Shields, in his confession, stated that he picked Ruby up at Riley College one day in March 1990 so that Ruby could get some things from his trailer. They got into a heated discussion, O'Shields said, concerning her relationship with someone else. He stated that Ruby told him that she was in love with the other person and that she did not care for him anymore. O'Shields further confessed that Ruby told him that he "did nothing" for her sexually. O'Shields stated that he "lost it", knocked her down, choked her to death, and then threw her body in the Alabama River.
David O'Shields, the appellant's uncle, testified that the appellant, who was white, had told him that he had strangled his ex-wife because she was dating a black man and had thrown her body in the river.
Mike Kynard, a friend of the appellant's, testified regarding three conversations he had with O'Shields. Kynard testified that in 1990 O'Shields told him that he had threatened Ruby after learning that she was dating a black man, and that she had left town. A month later, Kynard stated, O'Shields told him that he had ties to the Mafia and that he had traded someone in the Mafia a Thunderbird automobile to have Ruby killed. Kynard testified that two weeks after that conversation O'Shields confessed to him that he had killed Ruby and had thrown her body in a river.
The appellant contends that the trial court erred by denying his motion to suppress
The record reflects that in May 1994 the appellant was in custody in the Montgomery County jail on an unrelated capital murder charge. Officer Art Freine, of the Selma Police Department, testified at the hearing on the motion to suppress that he and Officer Joe Harrell went to the Montgomery Police Department on May 12, 1994, to question the appellant about Ruby Oliver's disappearance.
Freine testified that the morning interview was conducted primarily by Officer Joe Harrell. Freine stated that he was present during most of the interview, but said that he did leave the room several times. Freine stated that he did recall the appellant saying "I think I may need a lawyer" during the morning interview. Freine testified that Officer Harrell continued the interview after the appellant invoked his right to counsel. Harrell testified that he probably should have ceased questioning at that time but he did not.
Officer D.H. Carmichael, a Montgomery Police Officer, testified that he interrupted the morning interview to take the appellant to the jail for his lunch. Carmichael stated that he then went to lunch with Harrell and Freine. After returning from lunch, Carmichael asked the appellant if he wanted to talk anymore with Freine or Harrell. He said that he told the appellant, "if you want to, fine; if you don't, fine." The appellant then confessed to Freine and Carmichael.
The trial court found that the appellant had invoked his right to counsel during the morning interview and correctly suppressed the morning statement. The trial court, however, found that the appellant initiated the afternoon interview and it incorrectly received into evidence the appellant's confession.
The United States Supreme Court in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), addressed this issue, stating:
451 U.S. at 484-85, 101 S.Ct. at 1884-85, 68 L.Ed.2d at 386 (1981). (Emphasis added.)
Once a suspect invokes the right to counsel, the suspect cannot be subjected to further interrogation "unless the suspect himself initiates dialogue with the authorities." Wyrick v. Fields, 459 U.S. 42, 46, 103 S.Ct. 394, 395, 74 L.Ed.2d 214 (1982). "When counsel is requested, interrogation must cease, and officials may not reinitiate interrogation without counsel present, whether or not the accused has consulted with his attorney." Minnick v. Mississippi, 498 U.S. 146, 153, 111 S.Ct. 486, 491, 112 L.Ed.2d 489, 498 (1990).
In Oregon v. Bradshaw, 462 U.S. 1039, 103 S.Ct. 2830, 77 L.Ed.2d 405 (1983), the United States Supreme Court defined "initiate" as that term was used in Edwards. The Court stated:
462 U.S. at 1045-46, 103 S.Ct. at 2835, 77 L.Ed.2d at 412.
486 U.S. at 680-81, 108 S.Ct. at 2097-98, 100 L.Ed.2d at 712-13 (1988).
Alabama courts have applied Edwards and have held that statements made in violation of the appellant's right to counsel are inadmissible. See Ex parte Johnson, 522 So.2d 234 (Ala.1988). This court addressed this same issue in Arthur v. State, 575 So.2d 1165 (Ala.Cr.App.1990), cert. denied, 575 So.2d 1191 (Ala.1991), and stated:
575 So.2d at 1172-73.
Here, the appellant was clearly not afforded the opportunity to consult with counsel. Further, O'Shields did not initiate the dialogue with the authorities. Under the standards articulated in Edwards v. Arizona and Arthur, the appellant's confession was due to be suppressed.
Although we have held that the appellant's confession was wrongfully received into evidence because his Fifth Amendment right to counsel was violated, our analysis does not end.
Fisher v. State, 665 So.2d 1014, 1017-18 (Ala. Cr.App.1995).
The evidence in support of the state's case, based primarily on the testimony of Nichols, Hemphill, Kynard, and David O'Shields, was sufficient to prove beyond a reasonable doubt that the appellant committed the crime charged. The trial court's admission of the appellant's confession was harmless beyond a reasonable doubt.
The appellant next contends that because the evidence presented by the state was circumstantial, the evidence was not sufficient to support the jury's verdict.
Faust v. City of Gadsden, 639 So.2d 536, 538 (Ala.Cr.App.1993).
Viewing the evidence in the light most favorable to the state, we conclude that there was sufficient evidence to support the jury's verdict.
The appellant further contends that the state failed to prove the necessary elements of the corpus delicti in order to sustain his conviction.
Taylor v. State, 405 So.2d 946, 949 (Ala.Cr. App.), writ quashed, 405 So.2d 951 (Ala.1981). See also Tarver v. State, 500 So.2d 1232 (Ala.Cr.App.), aff'd, 500 So.2d 1256 (Ala. 1986), cert. denied, 482 U.S. 920, 107 S.Ct. 3197, 96 L.Ed.2d 685 (1987).
Here, the state presented sufficient circumstantial evidence to prove the corpus delicti of the murder charge. The trial court correctly submitted the case to the jury.
The appellant next contends that he was denied effective assistance of counsel. Specifically, he contends that his trial counsel failed to move for a mistrial or to preserve a record of alleged prejudicial conduct of members of the victim's family that occurred in the presence of the venire.
Williams v. State, 641 So.2d 1305, 1307 (Ala. Cr.App.1994).
The alleged conduct the appellant contends occurred is not contained in the record. The record reveals that the trial court acknowledged "two instances" that occurred during jury selection. The trial court informed the attorneys that they would be responsible for the actions of their witnesses. The record is silent as to what occurred during the proceedings.
Owens v. State, 597 So.2d 734, 736 (Ala.Cr. App.1992).
The appellant has not shown that the performance of his counsel was deficient, therefore he could make no showing that his defense was prejudiced by deficient performance.
Further, "[e]very court has power to preserve and enforce order in its immediate
The appellant, acting pro se, further contends that he was denied effective assistance of counsel because, he says, his trial counsel did not request that the trial judge recuse himself, agreed to certain stipulations at trial, and did not file a motion to dismiss alleging a violation of due process. These issues of ineffective assistance of trial counsel were not first presented to the trial court and therefore have not been preserved for review by this court. Bolling v. State, 624 So.2d 1136 (Ala.Cr.App.1993).
Moreover, the trial court is in a better position than this court to determine whether the appellant's trial counsel's performance was deficient. The trial court denied the appellant's motion for new trial based on ineffective assistance of counsel. No error occurred here.
For the foregoing reasons, the judgment is due to be, and is hereby, affirmed.
All the Judges concur, except COBB, J., who concurs specially with opinion.
COBB, Judge (concurring specially).
I agree with the majority that the judgment in this case should be affirmed. However, in Part I of the opinion the majority arrives at this conclusion by declaring that although the admission of the appellant's second confession was error, it was harmless error. After reviewing the record, I believe that the trial court acted properly by disallowing the confession made in the morning and by admitting the second statement made in the afternoon. Consequently, I concur specially.
The majority has correctly stated the law regarding the admission of a confession after an accused has unequivocally invoked his right to counsel. I must disagree with their application of the law to the facts in this case, however.
Miranda covers only statements which are involuntarily made to the police in violation of the appellant's right against self incrimination under the Fifth Amendment to the United States Constitution. However, as the United States Supreme Court stated, "Volunteered statements of any kind are not barred by the First Amendment and their admissibility is not affected by our holding today." Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).
As stated in Ex parte Gospodareck, to determine whether an accused voluntarily waived his right to counsel, the court must consider the totality of the circumstances.
Cpl. D.H. Carmichael, a Montgomery police officer, testified at both suppression hearings that when he went to get the appellant after lunch he asked him if he wanted to talk any more with the Selma police officers. He told the appellant, "If you want to, fine; if you don't, fine. Just let me know so I can tell them something." R. 107. The appellant then stated that he wanted to talk with Art Freine, the Selma detective. Cpl. Carmichael then escorted the appellant to the interrogation room where his statement was videotaped.
The transcript of this videotaped statement reveals that Cpl. Carmichael asked the appellant if he understood that he was being videotaped, and whether he had requested to speak to Detective Freine. R. 45. He responded affirmatively to both questions. He was then again read his Miranda warnings and thereafter he signed a waiver. R. 46. Then Cpl. Carmichael went the "proverbial second mile" by again asking the appellant whether he had been coerced, threatened, or promised anything in exchange for his statement. He responded, "No." When asked, "[Are you] giving this statement of your own free will?" His response was, "My conscience bearing on me and the good Lord bearing on me, yes sir, I want to give you this statement." R. 47-48.
When the totality of the circumstances in this case are considered, it is profoundly clear that the appellant's confession was voluntary, that he initiated the afternoon session by his own choice with full knowledge and understanding of his rights, and that there was no coercion on the part of the police involved in his interrogation. The appellant made his own choice; and he must live with the consequences.
Consequently, it is my contention that the majority is incorrect by applying a harmless error analysis, because the trial judge did not err.