Opinion
5 Div. 651.
July 14, 1966.
Appeal from the Circuit Court, Lee County, L. J. Tyner, J.
TO THE SUPREME COURT OF ALABAMA:
Under the provisions of Code 1940, T. 13, § 88, it is provided that:
"If the judges of said court are unable to reach an unanimous conclusion, or decision, in any case or matter before them, any one of said judges may certify to the supreme court any question or questions of law as to which said judges differ, stating such questions as abstract propositions, and the supreme court shall give its opinion upon the question so certified, and the opinions thus given by the supreme court shall be given the same effect by said court of appeals as it is required to give to the decisions of said supreme court."
There is now pending in the Court of Appeals a case on appeal from the Lee Circuit Court styled Walter Philpot, Jr. v. State of Alabama, 5 Div. 651, submitted December 2, 1965.
The judges of this court "are unable to reach an unanimous conclusion" in this case because of their disagreement (1) as to the effect of Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (No. 762, June 20, 1966), on a confession made by a defendant in custody without his asking for counsel, and without the police advising him of the right not to speak admitted in evidence at a trial which began after June 22, 1964, and before June 13, 1966, to-wit, November 24, 1964; and (2) as to the effect of White v. Crook, D.C., 251 F. Supp. 401, particularly as to its prospective overruling by postponement to June 1, 1967, as the effective date for filling jury rolls without regard to sex. Judge Cates considers that this feature of the three-judge Federal Court decree is now manifestly in error under the reasoning of Johnson v. New Jersey, supra. In the instant cause, before qualifying the jury, a motion to continue was made on the ground "that no women were on the jury venire called for the present term of court." The defendant claimed that women were systematically excluded from the venire.
The following abstract questions of law upon which the judges of this court differ in said case are hereby certified to your Honorable Court under said § 88, supra:
A. In trials begun after June 22, 1964, and before June 13, 1966, where the State adduces an incriminating statement elicited by the police from the defendant while in custody.
1. Must the State show either:
a) that defendant did not request counsel for consultation or presence before (or during) his interrogation; or
b) that the police "effectively warned him of his absolute constitutional right to remain silent."
2. Should your Court consider that the warning in 1 b) above should be shown to have been given, can compliance with the requisites imposed by the adverb "effectively" be shown by:
a) Testimony consisting only of the opinion of the interrogators as to the defendant's comprehension of the warning; or
b) Testimony both as to the opinion of the interrogators and some affirmative acknowledgement by the defendant that he intelligently grasped the substantial import of the warning?
B. Is White v. Crook, D.C., 251 F. Supp. 401, 408-409, Part II, of binding force and effect other than as to actual parties defendant, the members and clerk of the Lowndes County Jury Commission?
C. If your answer to B, above, is in the affirmative, then has Johnson v. New Jersey, supra, in effect overruled the postponement of relief to June 1, 1967, for compliance with White v. Crook, supra, Part II, as stated in paragraph 13, Part III, Relief?
The record in this case, together with a draft opinion by Judge Cates are forwarded for your convenience.
This the 27th day of June, 1966.
Respectfully submitted,
/s/ Annie Lola Price ------------------------- Presiding Judge
/s/ Aubrey M. Cates, Jr. ------------------------- Judge ------------------------- Judge
Response to Questions Certified by the Court of Appeals.
The following is in response to your inquiry as above set out.
Questions A. 1. and A. 2.
A. 1. In Johnson v. New Jersey, No. 762, June 20, 1966, the Supreme Court of the United States declared that the new rules enacted in Miranda v. Arizona, Nos. 759, 760, 761, and 584, June 13, 1966 [ 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694], apply only to cases in which the trial began after June 13, 1966.
We are, therefore, of opinion that in trials begun prior to June 13, 1966, the state is not required to show, as a predicate to the admission of evidence showing that defendant has made incriminating statements, that, prior to interrogation, defendant was effectively apprised of his privilege against self-incrimination or of his right to counsel as defined in Miranda.
A. 2. In the light of our answer to your question A. 1., question A. 2. requires no answer.
Question B.
B. We do not undertake to declare on the validity, effect, or extent of White v. Crook, D.C., 251 F. Supp. 401.
Whatever the force of White v. Crook, supra, may be, we are of opinion that Philpot is not in position to have relief by reason of that decision. From a viewpoint most favorable to Philpot, that holding appears to be that a prisoner, who is in position to do so, may complain of denial of equal protection of the laws resulting from exclusion of women from the jury. Philpot, however, is not a member of the group that has been excluded. As we understand the case, he is a man, not a woman. We do not think he can say he has been denied a jury of his peers. What one of the authors of White v. Crook, supra, said in another case seems appropriate here, to wit:
"* * * In addition to these reasons, the record in this case affirmatively reflects that Blauvelt was not a member of the group that he contends was systematically excluded in selecting the grand and petit jurors which were used by the State of Alabama in Sumter County, Alabama, prior to and at the time of the proceeding of which he complains. He has no standing, therefore, to raise the issue of 'systematic exclusion of Negroes from the grand and petit juries of Sumter County, Alabama' upon the ground that he, a white man — as was stipulated upon the pretrial of this case — was denied his constitutional rights by reason of said exclusion. Bailey v. Henslee, 8 Cir., 264 F.2d 744; Hollis v. Ellis, D.C., 201 F. Supp. 616." Blauvelt v. Holman, D.C., 237 F. Supp. 385, 387 (1964).
Question C.
C. Since our answer to your question B. is not in the affirmative, question C. does not appear to require an answer.
All the Justices concur.