Appeal from Houston Circuit Court. (CC-93-526). Edward Jackson, TRIAL JUDGE.
Rule 39(k) Motion Denied March 3, 1995. Rehearing Denied March 3, 1995. Released for Publication August 12, 1995.
Montiel, Judge. All the Judges concur; Bowen, P.j., Concurring in result only.
The opinion of the court was delivered by: Montiel
Quincy Lee Patterson, the appellant, was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975. He was sentenced to 30 years' imprisonment.
The evidence at trial tended to show the following. On April 30, 1993, Jerry Bennett, who owned an automobile repair business in Dothan, was shot and killed at his office. On the day Bennett was killed, Henry Shivers had walked past Bennett's place of business and had seen the appellant and Bennett talking. Bennett was sitting in a metal glider outside his office and the appellant was standing in front of him. Bennett was writing in a note pad. A short time later, Mr. Shivers heard a gunshot, but said that he did not investigate because the sound of gunshots was common in that area. Just after the shooting, Mary Franklin drove to Bennett's place of business to have him check her car. When he did not respond to her car horn or her calling his name, she telephoned the police. The paramedics arrived and Bennett was transported to a hospital where he was pronounced dead. Sgt. Stanley DeVane of the Dothan Police Department, the lead investigator in this case, testified that after gathering physical evidence at the scene, including photographs and a spent .25 caliber shell casing, and acting upon information from witnesses and an informant, he and another officer went to the appellant's house. After some preliminary questions, the officers read the appellant his Miranda rights and obtained a consent to search. This search yielded a .25 caliber clip and two unspent .25 caliber rounds. The officers also recovered a piece of paper with a series of numbers in a column that totaled $1,568.00. The appellant told the officers that Bennett had worked on the appellant's car some weeks earlier and that he had paid Bennett $338.00 for the work. The appellant said that the car soon broke down and the appellant returned the car to Bennett for repair. When the appellant would not pay for the repairs, Bennett told the appellant that he was going to sell the appellant's car. The $1568.00 figure on the piece of paper represented the amount Bennett said the appellant owed him. The appellant said that, as Bennett was writing the figures, he shot him in the top of the head and then walked off. The appellant then showed the officers where he had hidden the gun he had used in the shooting, which was a .25 caliber pistol.
Dr. Jimmy McLeod, a surgeon and general practitioner who had treated the appellant in the past, testified for the appellant and stated that a CAT scan showed evidence of two minor strokes and that these strokes had affected the appellant's concentration ability. On cross-examination, Dr. McLeod testified that the appellant knew right from wrong and that he knew that murder was wrong. He also testified that the CAT scan showed that these strokes did not affect the reasoning portion of the brain. He also testified that the appellant required no rehabilitation treatment as a result of the strokes.
The state called Dr. Robert Allen, a neurologist, as a rebuttal witness. He testified that the small strokes would not affect the appellant's ability to think, to reason, or to make judgments.
The appellant claims the trial court erred in denying his motion to suppress his statements. He argues (1) that these statements were given before the police gave the proper Miranda warning and were the product of misrepresentation by the police, and (2) that the appellant could not knowingly have waived his Miranda rights because of his mental and medical condition.
An extrajudicial statement is presumed involuntary and is inadmissible unless the state shows that the accused was informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and that the statement was not the product of coercion, threats, or offers of reward. Starks v. State, 594 So. 2d 187, 196 (Ala. Crim. App. 1991).
The appellant argues that the police officers did not immediately read him his Miranda rights before asking questions and that, therefore the post-Miranda statements were inadmissible as "fruit of the poisonous tree." (R. 94.) At the suppression hearing, Sgt. DeVane testified as follows:
"Q [district attorney]: Would you tell the Judge when you got there [appellant's house] what occurred?
A [Sgt. DeVane]: When we got to the residence, we split up. I went to the side door, Corporal Jay went to the front door. We knocked on the door. Mr. Patterson came outside. We both identified ourselves and told him that we were here to talk with him. And he wanted to know what we was there to talk to him about. And we told him he knew. And he then nodded his head yes. We went inside the residence. We -- or I begin to ask him a series of questions. I told him that I had information that he was involved in the shooting of Jerry ...