Carr v. State , 44 Ala. App. 661 ( 1968 )

CATES, Judge

(concurring).

Perhaps it is well that Judge PRICE has, in keeping with the excellent brief filed by the learned Assistant Attorney General, treated this appeal on the merits of the contentions in the Circuit Court.

Our writ of error coram nobis, however, like a narrow window, opens only on a restricted area.

First, it occurs to me that Carr patently knew of Shirley’s testimony given on the trial of the indictment. 43 Ala.App. 642, 198 So.2d at pp. 792 and 793. He cannot say at this late date that his retained counsel were not aware of whatever “rights” were conferred by Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L. Ed.2d 977, which was handed down June 22, 1964. Carr’s original trial came well after Escobedo.

Under Escobedo, as construed in this State as well as in Wisconsin, we believe all of the following must conjoin:

1) The police have determined to accuse the defendant; and

2) They have taken him into custody; and

3) They carry out interrogation seeking incriminating statements; and

4) The defendant asks for an opportunity to consult with his lawyer; and

5) The police deny him or his lawyer, or both of them, the opportunity of such consultation; and

6) The “police have not effectively warned him of his absolute constitutional right to remain silent.”

Then, the rule of exclusion works to keep out any “statement elicited by police during the interrogation.”

I see no application of the totality rule. Davis v. State, 44 Ala.App. 145, 204 So.2d 490, was an appeal from a conviction.

Second, in coram nobis the petitioner must allege and prove that he had a valid defense to the indictment. Rickard v. State, 44 Ala.App. 281, 207 So.2d 422.

Perceiving no miscarriage of justice on the original trial, I consider that Carr is not due a back door retrial. Assurance to be made doubly sure has not been assimilated into our law of post conviction review.