Appeal from Jefferson Circuit Court. (CC-89-1345.80). James Garrett, TRIAL JUDGE.
Rule 39(k) Motion Denied December 29, 1994. Rehearing Denied December 29, 1994.
The opinion of the court was delivered by: Patterson
The appellant, Joseph Ward Gentry, was indicted on April 7, 1989, in Jefferson County, for the capital offense of murder committed during a burglary in the first or second degree or an attempt thereof, a violation of Ala. Code 1975, § 13A-5-40(a)(4). The indictment reads, in pertinent part, as follows:
"The grand jury charges that ... Joseph Ward Gentry, did intentionally cause the death of Kimberly Diane Hill by stabbing her with a knife, and Joseph Ward Gentry caused said death during the time that Joseph Ward Gentry knowingly and unlawfully entered or remained, or attempted to enter or remain unlawfully in the dwelling of Kimberly Diane Hill with intent to commit murder, and the said Joseph Ward Gentry did cause physical injury to Kimberly Diane Hill by the said stabbing with a knife and by beating with a blunt object, in violation of Section 13A-5-40(a)(4) of the Alabama Criminal Code."
At the arraignment, the appellant pleaded not guilty. On August 5, 1992, a jury found him guilty of the capital offense charged in the indictment. A sentencing hearing was held before the jury, in accordance with §§ 13A-5-45 and -46, and the jury recommended that the sentence be life imprisonment without the possibility of parole, by a vote of seven to five. *fn1 Thereafter, the trial court held another sentencing hearing in accordance with §§ 13A-5-47 through -52, and, after weighing the aggravating and mitigating circumstances and considering the jury's recommendation, sentenced the appellant to death. The trial court's sentencing order, setting out written findings as to aggravating and mitigating circumstances and setting out written findings of fact summarizing the crime and the appellant's participation in it, is attached hereto as an appendix and is made a part of the opinion. "While the jury's recommendation concerning sentence shall be given consideration, it is not binding upon the court." § 13A-5-47(e). The appellant raises eight issues on appeal. *fn2
The state's evidence shows the following: The victim, Kimberly Diane Hill, and the appellant, who were involved in an affair, worked together at the Bank Operations Center of AmSouth Bank of Birmingham; the appellant was the shift manager and the victim's supervisor. On January 12, 1989, the day preceding the murder, they were to work the evening shift from 4:00 p.m. to 1:00 a.m. The appellant was married and had two children; Hill was a 24-year-old divorcee with no children. She had given the appellant keys to her apartment, and he was a frequent visitor there. Hill became pregnant as a result of the relationship, and the appellant promised to divorce his wife and to marry her. On the day of the murder, the appellant complained of being ill, left work early, and went to Hill's apartment, where he removed his work clothes and put on a pair of "camouflage fatigues." He waited in the dark for Hill to come home. When she entered the apartment, he grabbed her, beat her, and stabbed her repeatedly with a knife he had obtained from the kitchen. Then, when he observed that she was still moving, he bound her hands and feet with telephone cords and stuffed a towel down her throat. Before the appellant left the apartment, he opened the patio door, dumped the contents of Hill's purse on the floor, removed two rings from her fingers, and took other items from her jewelry box in an effort to make the crime appear as a "robbery attempt." After leaving the apartment, the appellant discarded the "camouflage fatigues" and jewelry in various parts of the city by throwing them from his automobile, and he returned to his home. The appellant went to work later in the day on January 13, 1989, at the regular time and, when Hill did not arrive at work, he expressed concern regarding her whereabouts, asked several people to call and check on her, and eventually asked Hill's mother to go to the victim's apartment to check on her. Hill's mother went to her apartment, where she discovered her daughter's body.
The autopsy revealed that the victim sustained 10 stab wounds, two incised wounds, and nine lacerations. The blade of the knife, which was left imbedded in her body, was 6 1/2" long. Her face was bruised, and her nose was broken. She died from multiple stab wounds and multiple blunt traumas. The autopsy also revealed that she was seven weeks pregnant.
Much of the state's evidence consisted of facts first disclosed by the appellant's confession and later corroborated. The appellant gave a statement to police investigators on the day after the murder, admitting that he had killed the victim. This statement was tape-recorded and introduced into evidence by the state. He stated, among other things, that he left work early the day before, that he went to Hill's apartment, that he changed into "camouflage fatigues," that he left his keys to her apartment on the kitchen counter, and that he waited in the dark for her to come home so he could "play a little game and jump out and surprise her." He further stated that when Hill came home, he startled her when he jumped out to surprise her and she struck him in the chest; that he lost his temper and threw a punch at her; and that they began punching each other. He stated that they "wrestled" up and down the hall and into the living room; that, when she was lying face down on the hall floor, he grabbed a knife from the kitchen and began "jabbing" her in the back; and that, because she was "moving," he took the telephone cords from the dining room and bedroom telephones and tied her hands and feet so that she could not move. He further stated that when he realized what he had done, he panicked and started trying to "figure out a way to cover it up"; that he knew that if he left her the way she was, as strong as she was and as strong-willed as she was, there was a possibility that she could get help and tell somebody; and that, in order to make the crime look like a "robbery attempt," he opened the sliding glass door and screen, dumped the contents of her purse onto the floor and took the rings from her fingers and the jewelry from her jewelry box. Finally, he stated that he discarded her property and the camouflage clothing as he drove around town.
The state also presented evidence of the appellant's admission, to a friend, who was also a shift manager at the Bank Operations Center, later on the day of the killing that he had stabbed Hill and that he thought she was alive when he left the apartment.
The appellant testified at the hearing on the motion to suppress his inculpatory statement. He did not testify at either the guilt phase or the sentencing phase of the trial and offered evidence only at the sentencing phase. The appellant did not deny killing Hill, but defense counsel urged the jury, in opening and closing statements in the guilt phase of the trial, to find that the killing arose out of a "domestic dispute"; that the appellant killed Hill in the "heat of passion"; and that he should be found guilty of manslaughter.
The appellant contends that the trial court committed reversible error in denying his motion to suppress his incriminating statement. He asserts that this statement was obtained in violation of Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966), and Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), because, he says, although he invoked his right to counsel, albeit equivocally, before giving the statement to the investigators, counsel was not provided and the investigators did not attempt to clarify his equivocal request for counsel before continuing with their interrogation and the taking of his statement.
Around 11:15 p.m. on the day following Hill's death, Investigator Roger Harrison visited the appellant at his place of employment and asked him if he had heard of Hill's death. The appellant stated that he had. Harrison asked the appellant if he would go to city hall to talk with the investigators, and he agreed. The appellant followed the investigators to the city hall in his automobile. He was questioned by Harrison in a conference room. Investigator Forrest Duncan was also present. Harrison asked the appellant about his relationship with Hill, when he last saw or talked with her, whether he had keys to her apartment, how long she had been pregnant, who else knew about their relationship, and if he knew of anyone who would want to cause her harm. According to Harrison, based upon things he had already learned in his investigation, he knew that some of the appellant's answers, particularly his answer to the question concerning keys to the victim's apartment, were untrue, and he noticed that the appellant's hands and knuckles were bruised.
Because of the evasiveness and untruthfulness of the appellant's answers and because of the bruises on the appellant's hands, Harrison began to consider the appellant as a suspect. He stopped asking questions and advised the appellant of his constitutional rights as required by Miranda. In advising the appellant of his rights, Harrison read the rights from a police department form. He advised him that, among other rights, he had the right to talk to a lawyer and have the lawyer present while he was being questioned, that if he could not afford a lawyer, one would be appointed to represent him before he was questioned, and that if he wanted to answer questions without a lawyer present, he had the right to stop the questioning at any time. Harrison also informed the appellant that it was not necessary that he answer any questions before having a bond set by the court. Before he was advised of his Miranda rights, the appellant made no statement admitting any involvement in the crime; rather he denied any involvement.
After he had read the appellant his rights, Harrison asked the appellant if he understood them, and the appellant stated that he did. He asked the appellant if he wanted to talk with the investigators, and he said that he did. Harrison gave the appellant the rights form, which contained a waiver, and asked him to read it and sign it, which he did. The waiver states in part: "I have read the above and understand fully each of these rights. Having these rights in mind I wish to make a voluntary statement and answer any questions without contacting an attorney or having one present." Harrison testified that upon signing the waiver, the appellant stated that he understood his rights and that he wanted to talk with them without a lawyer's being present. The appellant was not threatened or coerced in any manner to make a statement and no promises or offers were made to him. He did not appear tired even though the hour was late. (The appellant had gone to city hall around midnight and signed the waiver at 2:18 a.m.) Harrison stated that the appellant's lack of tiredness was probably due to the fact that the appellant's normal working hours were until 1:00 a.m.
After the appellant waived his rights and agreed to answer questions, Harrison reviewed the statements that the appellant had previously made that Harrison thought were inconsistent or untrue. The appellant denied killing the victim, and Harrison told him that he believed that he did. The appellant asked Harrison, "If I tell you what happened, will it make a difference?" Harrison stated that he could not promise him anything and that all he could do would be to present the facts. The appellant then asked, "Is it too late for a lawyer?" Harrison replied, "It is never too late for a lawyer." After two or three minutes of silence, during which the appellant said he was thinking, Harrison asked him if he wanted to tell them what happened, and, according to Harrison, he said, "O.K., I'll tell you."
The record, in pertinent part, shows the following:
"Q. [Defense counsel]: And then you made a note here, 'Is it too late for a lawyer?' He asked, 'Is it too late for a lawyer?'
"A. [Harrison]: That is correct.
"Q. And you said, 'It's never too late for a lawyer'?
"Q. Now, you can refer to your notes if you want, but is there anything before that point in the conversation that indicates that he was involved in this at all?
"Q. I mean he basically told you that she was pregnant, they had a relationship, but did he ever indicate to you before he asked for the lawyer that he killed her?
"Q. Okay. And you said, 'It's never too late for a lawyer'?
"Q. And then you asked him if he wanted to tell you what happened?
"Q. You didn't question him any further on the subject of a lawyer?
"Q. You didn't stop the questioning and tell him you can call a lawyer if you want one?
"A. I was answering his question. He asked me if it was too late for a lawyer and I answered his question, 'It's never too late for a lawyer.'
"Q. Okay. So what was your understanding of that statement, Roger? I mean what did you think? Did you just think that that was a passing statement? You knew that you were involved in the investigation of a homicide and that he was probably going to be a suspect. And he asked you if it was too late for a lawyer. What did you think that he meant by that?
"A. At this time, Mr. Gentry had already been advised of his constitutional rights and he had already been told that he had the right to a lawyer and had a right to have a lawyer present while he was being questioned.
"At the time he asked me this particular question, I answered his question as truthfully as I possibly could that it was never too late for a lawyer. At that point, I also paused and waited and we just sat in a blank room for some two or three minutes to find out what his wishes were. At that point when he never said anything else about an attorney, I assumed he was not asking for an attorney and I went further.
"Q. So you said you stopped for a couple of minutes and didn't ask him any questions during that period of time?
"Q. In order for him to follow up his request?
"Q. [On cross-examination by the prosecutor]: When you got to the point of his asking' 'Is it too late for a lawyer?' did you -- Other than the response that you made which I believe you have quoted as 'It's never too late for a lawyer,' did you or anyone else say ...