Lloyd v. State , 293 Ala. 410 ( 1974 )

304 So. 2d 235 (1974)

In re Johnnie Frank LLOYD, alias
v.
STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL.

SC 1049.

Supreme Court of Alabama.

November 27, 1974.

William J. Baxley, Atty. Gen., and John M. Gruenewald, Asst. Atty. Gen., for the State, petitioner.

No brief for respondent.

BLOODWORTH, Justice.

The State of Alabama, by and through the Attorney General, has sought, by application for writ of certiorari to the Court of Criminal Appeals, our review and reversal of that court's judgment of reversal in Lloyd, Alias v. State [1974], 53 Ala.App. 730, 304 So. 2d 232. The application is denied.

The grounds upon which the application is sought is "a case of first impression." In the application it is stated:

"The State has been unsuccessful in its attempts to find an Alabama case which has considered whether or not it is reversible error for the trial court to summarily cut off defense counsel's cross-examination of a state's witness on voir dire when the State's witness is offering testimony as to the circumstances surrounding an alleged inculpatory statement made by the accused, in the witness' presence, prior to trial."

The application is due to be denied for the reason, if for no other, that it is not a case of first impression. In a long line of decisions since at least 1887, eighty-seven years ago, this Court has been committed to the proposition:

"CLOPTON, J.—The established doctrine in this state is, that all confessions are presumptively involuntary and inadmissible; and that it is incumbent on the state to show, prima facie, that a confession was freely and voluntarily made, before it can be admissible in evidence to the jury. The determination of this inquiry, as the determination in respect to the admissibility and competency of all evidence, lies within the province of the court. The inquiry, however, should not be determined on ex-parte evidence. Whenever the admissibility of any evidence depends on extraneous facts, both parties should be allowed to introduce proof * * *. In determining whether the confession proceeded from the volition of the accused, or from an influence improperly exerted, the judge should hear and determine the question of admissibility, not merely upon such showing as the prosecutor may deem proper to make, but also upon the proof which the defendant may introduce, in order that he may not be prejudiced by the admission of illegal evidence. After the prosecution has shown a prima facie case, it is the right of the accused to introduce testimony to rebut, and to show that the confession was not voluntarily made and, in determining whether a prima facie showing of a voluntary confession is made, the court should consider the testimony introduced by both parties. Rufer v. State, 25 Ohio St. 464; People v. Soto, 49 Cal. 67." Jackson v. State, 83 Ala. 76, 3 So. 847 (1887).

In a more recent decision in Lokos v. State, 278 Ala. 586, 179 So. 2d 714 (1965) (per Lawson, J.), this Court held:

"It is settled in this state that the accused may, before confessions are admitted in evidence, cross-examine a witness for the State as to their voluntary character and offer outside evidence on voir dire in contradiction of that produced by the State. Peoples v. State, 256 Ala. 612, 56 So. 2d 665; White v. State, supra [260 Ala. 328, 70 So. 2d 624]. It is the right of the accused to controvert evidence in laying such predicate by cross-examination, or by evidence aliunde, but such countervailing evidence impeaching the predicate to be successful must be offered on the voir dire, before the confession is admitted."

Further, we have held it to be reversible error for the trial court to deny defendant counsel the right to cross-examine the witness on voir dire with reference to the circumstances of the confession, viz.:

"* * * and it has been held reversible error for the trial court to deny defense counsel opportunity to cross-examine the witness on voir dire with reference to circumstances surrounding a purported confession for the purpose of determining whether or not it was voluntarily made. * * *" Vincent v. State, 284 Ala. 242, 224 So. 2d 601 (1969).

The obvious reason for the rule is stated in Lokos v. State, supra:

"If such countervailing evidence is not offered until after the preliminary question of the admissibility of the confession is passed on by the court, it goes to the jury on the credibility of the confession only. Lockett v. State, supra [218 Ala. 40, 117 So. 457]; Cook v. State, supra [16 Ala.App. 390, 78 So. 306]."

See also: Howard v. State, 44 Ala.App. 595, 217 So. 2d 548 (1969); Young v. State, 41 Ala.App. 284, 130 So. 2d 249 (1961); Hunter v. State, 38 Ala.App. 351, 83 So. 2d 737 (1955).

See State v. Wilbanks, 289 Ala. 166, 266 So. 2d 619 (1970) relating to the right of voir dire in circumstances other than confessions.

It is therefore that we agree with the Court of Criminal Appeals' holding that the trial judge committed reversible error in cutting off and denying defense counsel the opportunity to further cross-examine on voir dire the deputy sheriff who had testified to an inculpatory statement allegedly made by defendant and overheard by the deputy sheriff.

Writ denied.

HEFLIN, C. J., and COLEMAN, McCALL and JONES, JJ., concur.