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09/02/94 EX PARTE MICHAEL RENE PARDUE (RE MICHAEL

September 2, 1994

EX PARTE MICHAEL RENE PARDUE (RE: MICHAEL R. PARDUE
v.
STATE)



PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS. (Baldwin Circuit Court, CC-73-6313, Court of Criminal Appeals, CR-92-0272). Charles C. Partin, TRIAL JUDGE.

As Corrected. Rehearing Denied January 13, 1995. Released for Publication August 12, 1995.

Maddox, Almon, Shores, Houston, and Kennedy, JJ., concur. Steagall and Ingram, JJ., Dissent.

The opinion of the court was delivered by: Maddox

MADDOX, JUSTICE.

Michael Rene Pardue was convicted on August 14, 1973, of murder and was sentenced to life imprisonment. The United States District Court for the Southern District of Alabama, on November 18, 1992, granted Pardue's petition for habeas corpus relief and ordered the State of Alabama to either grant Pardue an out-of-time appeal or release him.

The Court of Criminal Appeals granted Pardue's out-of-time appeal and considered the legal issues that he raised, but affirmed his conviction, which was more than 20 years old. Pardue v. State, 661 So. 2d 263 (Ala.Cr.App. 1993). This Court granted Pardue's petition for a writ of certiorari, to review several issues that Pardue presented. We think the dispositive issue is whether the Court of Criminal Appeals erred in holding that the trial court did not err when it admitted Pardue's alleged confession into evidence, over his objection.

We set out some of the basic facts for a better understanding of the issue. In the early morning hours of May 22, 1973, the body of Ronald Rider was found in the service station where he worked. Rider had been shot in the head with a shotgun. Michael Pardue, who was 17 years old at the time, was arrested that afternoon. Later that same day, an attorney, David Barnett, arrived at the police station, claiming to represent Pardue. Barnett advised the police not to talk to Pardue. Robert Stewart, the chief investi-gator for the Baldwin County Sheriff's Department, testified that Pardue's family stated that Barnett did not represent Pardue.

Around 8:30 p.m. on May 23, 1973, after Pardue had been in custody for approximately 30 hours, Stewart took Pardue's statement. Stewart testified that before taking his statement he read Pardue his Miranda rights and Pardue signed a waiver form. There is no evidence of any prior Miranda warnings. Stewart testified that he asked Pardue if Barnett was his attorney and that Pardue replied that "he didn't know how Mr. Barnett got into the case." Stewart testified that no inducements were offered to Pardue to get him to give a statement. Stewart also testified that he did not know how long the police had been questioning Pardue, but that they were talking to him when he went to talk to him.

According to Stewart, Pardue told him that on May 22, 1973, he and Theresa Lanier had met at a motel in Mobile. Stewart said that Pardue told him that they left the motel in a stolen pick-up truck and went to Baldwin County to meet John Brown. Stewart testified that Pardue told him that they drove to Thoni's gasoline station and pretended that the truck was overheated. Stewart said that Pardue told him that they entered the station and that he held a .410 shotgun on Rider. Stewart testified that Pardue told him that Brown removed money and keys from Rider's pockets and went out of the station to get a crowbar for Rider to use to open the locked safe. According to Stewart, Pardue said that while Rider was opening the safe with the crowbar, he threw the crowbar at Pardue and Pardue shot him. Theresa Lanier testified that Pardue did not shoot Rider but that he had handed the gun to Brown while Rider was opening the safe and that Brown shot Rider.

After Pardue's conviction, he filed a notice of appeal, but that appeal was dismissed by the attorney then representing him, on October 29, 1973; the District Court for the Southern District of Alabama granted Pardue habeas corpus relief and ordered the State to grant him an out-of-time appeal or to release him. The State agreed to grant Pardue an out-of-time appeal, and as stated above, the Court of Criminal Appeals affirmed Pardue's conviction.

Pardue argues that the trial court's admission into evidence of his alleged confession in his trial was prejudicial because, he says, the State failed to show that it was voluntarily given. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

In Ex parte Williams, 627 So. 2d 999, 1002-03 (Ala. 1993), this Court, quoted from Jackson v. State, 516 So. 2d 726, 741 (Ala. Crim. App. 1985), remanded on other grounds, 516 So. 2d 768 (Ala. 1987), as follows:

"'Pursuant to Alabama law, a statement made subsequent to an arrest is prima facie involuntary and inadmissible at trial; thus, the State must prove the statement was voluntarily made and must lay a Miranda predicate before the statement is admissible. Thomas v. State, 373 So. 2d 1167 (Ala. 1979), vacated on other grounds, 448 U.S. 903, 100 S. Ct. 3043, 65 L. Ed. 2d 1133 (1980); Lewis v. State, 295 Ala. 350, 329 So. 2d 599 (1976). Whether a waiver is voluntarily, knowingly, and intelligently made depends upon the particular underlying facts and circumstances of each case, including the background, experience, and conduct of the accused -- the totality of the circumstances. Chandler v. State, 426 So. 2d 477, 478 (Ala.Crim.App. 1982) (citing Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981)); Myers v. State, 401 So. 2d 288, 291 (Ala.Crim.App. 1981), and cases cited therein. See also Dunkins v. State, 437 So. 2d 1349 (Ala.Crim.App.), aff'd, 437 So. 2d 1356 (Ala. 1983), cert. denied, 465 U.S. 1051, 104 S. Ct. 1329, 79 L. Ed. 2d 724 (1984); Harris v. State, 420 So. 2d 812 (Ala.Crim.App. 1982); Rogers v. State, 417 So. 2d 241 (Ala.Crim.App. 1982); Dolvin v. State, 391 So. 2d 677 (Ala. 1980). "Any clear manifestation of a desire to waive is sufficient. The test is the showing of a knowing intent, not the utterance of a shibboleth." Lloyd v. State, 45 Ala. App. 178, 184, 227 So. 2d 809, 814 (1969) (quoted with approval in Rogers v. State, 417 So. 2d at 248). The trial Judge need only be convinced from a preponderance of the evidence to find a confession to have been voluntarily made. Harris v. State, 420 So. 2d at 814. The voluntariness of a statement is a question of law for the court, to be determined upon preliminary proof, taken outside the presence of the jury, and such finding will not be disturbed on appeal unless it appears contrary to the great weight of the evidence, or is manifestly wrong. Marschke v. State, 450 So. 2d 177 (Ala.Crim.App. 1984), and cases cited therein.'"

Similarly, in Jackson v. State, 562 So. 2d 1373, 1380 (Ala. Crim. App. 1990), the Court of Criminal Appeals set out the principles of law that govern our review of a trial Judge's ...


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