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03/03/95 MARK SHANNON WHEELER v. STATE

March 3, 1995

MARK SHANNON WHEELER
v.
STATE



Appeal from Cleburne Circuit Court. (CC-93-80). George Simpson, TRIAL JUDGE. This Opinion Substituted by the Court for Withdrawn Opinion of October 21, 1994, Previously .

Taylor, Judge. All The Judges Concur.

The opinion of the court was delivered by: Taylor

ON REHEARING EX MERO MOTU.

TAYLOR, JUDGE

This court's opinion of October 21, 1994, is hereby withdrawn and the following substituted therefor.

The appellant, Mark Shannon Wheeler, was convicted of murder, a violation of § 13A-6-2, Code of Alabama 1975. He was sentenced to life in the penitentiary.

The state's evidence tended to show that on July 7, 1993, the decomposed body of 16-year-old L.B. *fn1 was discovered in the Tallapoosa River in Cleburne County. A rope had been tied around the neck and one ankle and the ends of ropes were tied to a tire rim. The coroner testified that the victim's throat appeared to have been cut. The victim was identified based on X-rays of the body.

The appellant confessed to the crime and gave a lengthy detailed account of the circumstances surrounding L.B.'s death. The appellant stated, in part, the following:

"I pulled my blackjack out of my back pocket striking her several times. She went unconscious. She had went backwards onto the bed with her shoulders hanging off the bed. I took one step it seemed like to the adjoining room, the kitchen. I grabbed a steak knife and cut her jugular vein. She was still unconscious. I watched her bleed for what seemed like 10 or so seconds. I kind of shook her and got no response. I knew she was dead. I opened one of her eyelids and stuck her with the knife a little to see for sure if she was dead. She didn't move. I then proceeded to cut the right nipple off. I noticed her breast did not bleed. I then pulled her vagina lips out and cut them out. I then carved the word 'hitchhiker' into her upper leg, and kind of cleaned myself up and went by Tim Brimer's house. I didn't stay long. I left and went by my father's place of business. I picked up a car rim and went back home. I cleaned up most of the blood. Rigor mortis had already set in and there was a foul odor in the air. I got some rope from outside and went back in and split her leg open along her heel between the bone and the hamstring and stuck a piece of rope through it and tied it in a knot. I put a garbage bag over her head because [her] head and neck were the only place where there was blood on her. Then I kind of rolled her up in a sheet and drug her through the house and left her on the living room floor. I went outside and backed my truck up to the door and let down the tailgate and loaded her on it. I then threw a drop cloth over her. I found a half of a cinder block and put it in the truck with the rim. I drove to a bridge going to Ross Mountain. It had already turned dark. I stopped on the bridge, opened the tailgate up, and unloaded the body. I then tied one end of the rope around the neck. The rim or the block was tied there. And the other was tied to the ankle. I then sat down and used my feet to push the body off the bridge. I heard the splash. I got back into the truck and left."

I

The appellant initially contends that the trial court erred in allowing his confession to be received into evidence because, he says, he did not knowingly waive his Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) rights before he made his statement. Specifically, he contends that his mental condition at the time he made the statement rendered any waiver of his rights under Miranda involuntary.

Before an accused's confession may be received into evidence against him, both voluntariness and a Miranda predicate must be shown. Morrison v. State, 601 So. 2d 165 (Ala. Cr. App. 1992); Whitlow v. State, 509 So. 2d 252 (Ala. Cr. App. 1987); Malone v. State, 452 So. 2d 1386 (Ala. Cr. App. 1984). The appellant's sole contention concerning the court's receipt of his confession into evidence is that because of his mental condition, he says he was incapable of voluntarily waiving his Miranda rights.

The standard for reviewing a trial Judge's ruling on the voluntariness of a confession is stated in Morrison :

"The trial Judge need only be convinced of the voluntariness of the statement by a preponderance of the evidence, see Colorado v. Connelly, 479 U.S. 157, 168, 107 S. Ct. 515, 522, 93 L. Ed. 2d 473 (1986), and his finding of voluntariness will be reversed on appeal only if 'manifestly contrary to the weight ...


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