Opinion
8 Div. 265.
June 28, 1974. Rehearing Denied July 30, 1974.
Appeal from the Franklin County Circuit Court, Kennedy Williams, J.
Joe Gilliland and Bedford Bedford, Russellville, for appellant.
Evidence is not admissible upon the offer of the State, against the defendant in a criminal case, of a statement by him stemming from questioning by a law enforcement officer after the defendant has been taken into custody or deprived of freedom unless the State can show that procedural safeguards were used to protect one's right against self-incrimination. Fifth Amendment, U.S. Constitution; Sixth Amendment, U.S. Constitution; Miranda v. Arizona, 384 U.S. 436, Statements of a confessional nature may not be used for impeachment if not admissible for ordinary purposes. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. The right to counsel is so important at every stage in the criminal proceeding. Sixth Amendment, U.S. Constitution; Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959); Powell v. Alabama, 385 U.S. 845, 87 S.Ct. 88, 17 L.Ed.2d 77; Escobedo v. Ill., 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964); Stovall v. Denno., 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
William J. Baxley, Atty. Gen., and Charles N. Parnell, III, Asst. Atty. Gen., for the State.
A criminal defendant may intelligently waive his right to assistance of counsel at interrogation without the assistance of counsel. Gilpin v. United States, 5 Cir., 415 F.2d 638.
Where evidence of the circumstances surrounding a confession is conflicting on voir dire, the trial court must decide on its admissibility and then, if the confession is admitted, controverted testimony for defendant goes to the jury on its credibility. McNair v. State, 50 Ala. App. 465, 280 So.2d 171; Hegmon v. State, 50 Ala. App. 486, 280 So.2d 192; Tucker v. State, 50 Ala. App. 405, 279 So.2d 576; Sheppard v. State, 49 Ala. App. 674, 275 So.2d 353; Vernon v. State, 239 Ala. 593, 196 So. 96.
Murder in the second degree: sentence, thirty-five years imprisonment.
I
This case (brought on appeal by a lawyer other than trial counsel) arose out of the same slaying which was the subject matter of Crouch v. State (1974) 53 Ala. App. 261, 299 So.2d 305. The evidence in the instant record is more detailed and here Ables testified that Crouch was the sole culprit. The State again relied on — inter alia — the testimony of Junior Scott which tended to fasten the guilt on both Ables and Crouch.
II
The only point reasonably arguable within the confines of Code 1940, T. 15, § 389 and Supreme Court Rule 45 is the claimed applicability of Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.
Here, Ables notified — from the county jail — a State investigator, Dexter Haney, that he, Ables, wanted to talk to Haney. This resulted in an exculpatory statement which Haney, over defense objection, was allowed to relate to the jury.
Theretofore, the defendant's family had retained — apparently without full payment — the services of an attorney. This lawyer later represented Ables at arraignment and trial.
At the time of the statement, however, according to Haney, Ables related that he was getting rid of the retained lawyer and planned later to ask for court-appointed counsel. Haney testified that Ables seemed to believe either that the lawyer had given up practice — his telephone having been disconnected — or that the lawyer was trying to sequester Ables's car for his fee. Ables tried to put a different light on this.
In this context we consider that the trial judge was justified in allowing the jury to hear Haney's version of this episode and the consequent statement. When credited to the required degree, this testimony clearly showed that Haney was not going behind the lawyer's back. Massiah, supra, is distinguishable.
We have carefully considered the entire record, including each and every ruling adverse to the appellant. From this examination we conclude that the lower court's judgment should be.
Affirmed.
All the Judges concur.