Powell v. State

796 So.2d 404

Eddie Duval POWELL III v. STATE.

CR-98-0246

Court of Criminal Appeals of Alabama.

October 29, 1999.

Rehearing Denied December 10, 1999.

John William Stahl, Tuscaloosa, for appellant.

Bill Pryor, atty. gen., and Jeremy W. Armstrong, asst. atty. gen., for appellee.

FRY, Judge.

The appellant, Eddie Duvall Powell III, was convicted of four counts of capital murder: murder committed during the course of a burglary in the first degree, see § 13A-5-40(a)(4), Ala.Code 1975; murder committed during the course of a robbery in the first degree, see § 13A-5-40(a)(2), Ala.Code 1975; murder committed during a rape in the first degree, see § 13A-5-40(a)(3), Ala.Code 1975; and murder committed during sodomy in the first degree, see § 13A-5-40(a)(3), Ala. Code 1975. The jury, by a vote of 11-1, recommended that Powell be sentenced to death. The trial court imposed the death sentence recommended by the jury.

The record contains a summary of the facts and evidence presented, as found by the trial court. In pertinent part, the trial court's order states as follows:

"The Defendant, Eddie Duval Powell, has been convicted in this case of capital murder. The jury has recommended the sentence of death.

"(1) In the early morning hours before sunrise on March 25, 1995, the victim, [M.W.], was brutally attacked, raped, sodomized and shot to death. The victim was an elderly widow and was attacked in her home in Holt, Alabama, as she apparently attempted to escape her attacker.

"(2) Defendant and a friend, Bobby Johnson, lived at the Johnson home across the street from the victim. Defendant and Bobby Johnson both worked at O'Charley's restaurant. Defendant borrowed Bobby Johnson's leather jacket and left the Johnson home in the early hours of March 25, 1995.

"(3) The evidence plainly showed that the Defendant had been at the home of the victim, contrary to Defendant's statement. The Defendant's semen was found in the victim's mouth, rectum, and vagina. The victim's blood was found on the Defendant's pants and on Bobby Johnson's leather jacket, which was worn by the Defendant on this date. The Defendant's handprint was found on the window on the front of the victim's home, where a screen had been cut. A matchbook from O'Charley's restaurant was found in the unfinished basement under the victim's home immediately after the murder. The matchbook appeared to have been there only a short time since it had no dust on it, unlike most other things in the basement.

"(4) The victim was shot about 5:25 A.M. on March 25, 1995, and the Defendant was first seen on videotape at the Shell Oil Station in Alberta City about an hour later at 6:27 A.M. This station was a walking distance of about forty-two minutes from the victim's home, considering a stop the Defendant made along the way, that was in evidence. The Shell Oil Station employee testified that the Defendant paid for wine mostly in nickels and had a lot of change in small coins. This was significant because the victim kept a container of small change in her purse for use in nickel and dime card games. The container of small change was missing, and the victim's handgun was missing also. The Defendant appeared at the Shell Oil Station wearing a leather jacket with a wet stain on it. The victim's blood was on the leather jacket worn by the Defendant on March 25, 1995. The Defendant wore this bloodstained jacket, which belonged to Bobby Johnson, to the residence of his friend, Jason Long, on the morning the victim was killed.

"(5) Testimony showed that the contents of the leather jacket pockets included an O'Charley's matchbook, small change, and jewelry similar to jewelry owned by the victim. None of these items belonged to Bobby Johnson, who owned the jacket and stated that no bloodstain was on the jacket when the Defendant took it.

"(6) The evidence showed that Defendant had a handgun after he arrived at the residence of Jason Long, which was about daybreak or between 6:30 and 7:00 A.M. on March 25, 1995. The Defendant asked Jason Long, who lived near the Shell Oil Station, to get rid of the handgun. Jason Long complied with this request, and the handgun was never found.

"(7) On the morning of March 25, 1995, the Defendant had fresh scratches on the back of his neck. Lawrence Bunkley, an acquaintance of Defendant and a friend of Jason Long, testified that the Defendant told him on the day the victim was killed something to the effect that he did the bitch, she ran up on him and he shot her."

(C. 661-63.)

I.

Powell contends that the trial court erred in denying his motion to suppress his videotaped and audiotaped statements.

"`"`In reviewing the correctness of the trial court's ruling on a motion to suppress, this Court makes all the reasonable inferences and credibility choices supportive of the decision of the trial court.'" Kennedy v. State, 640 So.2d 22, 26 (Ala.Cr.App.1993), quoting Bradley v. State, 494 So.2d 750, 761 (Ala.Cr. App.1985), aff'd, 494 So.2d 772 (Ala. 1986), cert. denied, 480 U.S. 923, 107 S.Ct. 1385, 94 L.Ed.2d 699 (1987). A trial court's ruling on a motion to suppress will not be disturbed unless it is "palpably contrary to the great weight of the evidence." Parker v. State, 587 So.2d 1072, 1088 (Ala.Cr.App.1991).'

"Rutledge v. State, 680 So.2d 997, 1002 (Ala.Cr.App.1996)."

Maples v. State, 758 So.2d 1, 41 (Ala.Cr. App.1999).

A.

Powell asserts that he should have been informed of his Miranda rights during his initial interview, pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Specifically, he argues that the videotaped interview with Stan Bush, a homicide investigator for the Tuscaloosa Police Department, was a custodial interrogation.

"Miranda warnings are not necessarily required to be given to everyone whom the police question. Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 713, 50 L.Ed.2d 714 (1977). Miranda is only applicable when an individual is subjected to custodial interrogation. Davis v. Allsbrooks, 778 F.2d 168, 170 (4th Cir.1985); Primm v. State, 473 So.2d 1149, 1158 (Ala.Crim.App.), cert. denied, 473 So.2d 1149 (Ala.1985). `By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in a significant way.' Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612.

"There is a distinction which must be made between general interrogation and custodial interrogation since Miranda is inapplicable when interrogation is merely investigative rather than accusative. Kelley v. State, 366 So.2d 1145, 1148 (Ala.Crim.App.1979); Primm, supra, at 1158; Johnston v. State, 455 So.2d 152, 156 (Ala.Crim.App.), cert. denied, 455 So.2d 152 (Ala.1984). This distinction should be made on a case-by-case basis after examining all of the surrounding circumstances. United States v. Miller, 587 F.Supp. 1296, 1299 (W.D.Pa.1984); Johnston, supra, at 156; Warrick v. State, 460 So.2d 320, 323 (Ala.Crim.App. 1984); Hall v. State, 399 So.2d 348, 351-52 (Ala.Crim.App.1981); Kelley, supra at 1149."

Hooks v. State, 534 So.2d 329, 347-48 (Ala. Cr.App.1987). See State v. Smith, 715 So.2d 925 (Ala.Cr.App.1998).

In deciding whether the questioning of a suspect is a custodial interrogation, the following factors should be considered:

"`(1) the language used to summon the individual, (2) the extent to which the defendant is confronted with evidence of guilt, (3) the physical surroundings of the interrogation, (4) the duration of the detention, and (5) the degree of pressure applied to detain the individual. United States v. Crisco, 725 F.2d 1228, 1231 (9th Cir.), cert. denied, 466 U.S. 977, 104 S.Ct. 2360, 80 L.Ed.2d 832 (1984)....'"

Hooks v. State, 534 So.2d at 348 (some citations omitted), quoting United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985). See also State v. Smith, 715 So.2d 925, 927 (Ala.Cr.App.1998). In Click v. State, 695 So.2d 209 (Ala.Cr. App.1996), this Court stated:

"It is well established that `the prosecution may not use statements, whether exculpatory or inculpatory, of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.' Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). However, the safeguards required by Miranda are required only if the defendant is in custody when questioned. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); Landreth v. State, 600 So.2d 440, 444 (Ala.Cr.App.1992).

". . . .

"Also, the fact that the questioning occurred at the police station does not necessarily lead to a conclusion that appellant was in custody for Miranda purposes.

"`[P]olice officers are not required to administer Miranda warnings to everyone they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect.'

"Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977)."

695 So.2d at 216-17.

During the suppression hearing, Bush testified that he asked Cora Jennings, the victim's neighbor, to tell both Powell and Bobby Johnson to come to the police station and talk to him. Powell, Bobby Johnson, and Cora Jennings (Johnson's mother) lived across the street from the victim, and Bush believed Powell and Bobby Johnson had information about the murder. Additionally, Powell worked at O'Charley's restaurant and a matchbook from O'Charley's was found at the scene of the murder. Bush stated that Vincent Johnson, a friend of Powell's, drove Powell to the police station around 1:45 p.m. on March 25, 1995. According to Bush, he believed that Powell was a possible witness to the crime, and he began questioning Powell around 2:00 p.m.

Our review of the videotaped interview indicates that Bush began the interview around 2:00 p.m....