Faulder v. State ( 1979 )

OPINION

QUENTIN KEITH, Commissioner.

Appellant was convicted of the offense of capital murder, the indictment having charged that he killed Inez Phillips while in the course of committing or attempting to commit aggravated robbery. At the punishment hearing, the jury answered each of the three questions set out in Article 37.071, V.A.C.C.P. (Supp. 1978-79), in the affirmative, and appellant was sentenced to death.

Although the conviction is assailed by six grounds of error, none directly challenge the sufficiency of the evidence. The body of Inez Phillips, a widow seventy-five years of age, was found on a bed in her home in Gladewater by her maid on the morning of July 9, 1975. Mrs. Phillips was bound and gagged with tape, a large knife was protruding from her upper chest and the back of her skull had been crushed by a blunt instrument.

Mrs. Phillips’ home had been ransacked thoroughly and all indications were that robbery had been the aim of her assailant, but no immediate suspect was known to the officers.

Appellant was arrested in the State of Colorado on April 18, 1977, upon a warrant charging theft over two hundred dollars in an unrelated incident alleged to have been committed in Gregg County on July 4,1975. Appellant waived extradition and was returned to Gregg County on April 20. The next day, Justice of the Peace Charles Cashed advised him of his statutory rights regarding the theft charge as set out in Article 15.17, V.A.C.C.P. (1977), and appellant acknowledged such statutory warning by signing on the front page thereof.

On April 25, 1977, appellant signed a written statement confessing that he killed Mrs. Phillips under circumstances amounting to capital murder. At the trial, and after an extensive Jackson v. Denno¹ hearing, the court found the statement to have been voluntarily made and held it to be admissible as a matter of law and fact. Article 38.22, § 6, V.A.C.C.P.

James C. Bailey testified that he owned the Twilight Lounge located on South Green Street in Longview and the Fina Service Station located just across the street from the lounge. In early July, 1975, a person known to him at that time as Stan Cotter was operating the filling station. He identified appellant as the person known to him as Cotter. During the first week in July, he learned that appellant and more than three hundred dollars of his money were missing from the filling station.²

James Millard Moulton, Jr., was a carpet layer and a tile setter who had been engaged in laying tile in Mrs. Phillips’ house during the spring and early summer of 1975. Moulton, a self-confessed alcoholic, told of going to the Hurricane Club in Longview with a woman known to him only as Stormy Summers and, while there drinking with Summers, he had a conversation with appellant who was there playing pool with another man [Doyle Hughes]. During this conversation, appellant told him that he was “a pool hustler and a safe cracker”;³ thereupon, Moulton told appellant that he knew where there was a floor safe that could be cracked and that it probably had some money in it. Appellant “wanted to know, you know, where it was located and who all lived there and where would be the best way to get in and how would be the best way to handle it.”

Moulton drew a floor plan sketch of the Phillips home showing the location of the safe in a hall closet of the new addition to the residence. Moulton, Summers, appellant, and Hughes then drove in Moulton’s car to the Phillips residence in Gladewater where he pointed out the house to the group before returning to Longview.

We will discuss the admissibility of appellant’s confession later, it being sufficient to state at this time that he went into great detail confirming the meeting with Moul-ton, Summers, and Hughes in the bar, and the trip to Gladewater to view the house. He told of meeting Summers a few days later when they discussed the possibility of burglarizing the Phillips home. He said that on July 8, 1975, he and Summers went to the Phillips house and parked the car. They had a .38 caliber pistol and a “homemade blackjack made out of a piece of flat iron, and a roll of white tape.” We continue:

“Stormy took the gun and went to the door pretending her car had broken down. Mrs. Phillips came to the door and let Stormy in. Stormy then held the gun on Mrs. Phillips and let me into the house. I talked to Mrs. Phillips for a couple of minutes and she got the combination to the safe from a drawer where she had it tucked away. The safe is located in the closet next to the rear entrance. Mrs. Phillips told me that there was no money in the safe, but I didn’t believe her. I opened the safe and it was empty.

“While I was opening the safe I heard a shot and went back to the bedroom where Stormy had taken Mrs. Phillips.

“Mrs. Phillips was struggling with Stormy but stopped when I came into the room. We attempted to get her to lie down on the bed and stop struggling long enough to tie her up. She continued to fight so I hit her with the homemade blackjack. I was standing behind her when I hit her. The blow knocked her unconscious. We put her on the bed and tied her hands with tape. We also put tape across her mouth. We proceeded to go through the house. We found some costume jewelry and a fur cape.

“I went back to check on Mrs. Phillips. She was moaning and groaning and kicking. I felt the back of her head and the skull felt crushed. I went to the kitchen and got a knife. I went back to the bedroom and stabbed Mrs. Phillips. I stabbed her in the center of the chest.”

Other testimony, properly received, disclosed that the stab wound severed the aorta and, according to the pathologist, caused death in a matter of “[n]o more than a half to one minute.” The blow to the head, according to the same source, would have caused death in a matter of hours if untreated.

The State’s evidence showed that a pistol had been discharged from inside the bedroom where Mrs. Phillips’ body was found, that the knife was taken from her kitchen, and that she was killed during the early evening hours of July 8, 1975.

Appellant did not testify before the jury on either facet of his trial and offered no affirmative evidence. The court’s charge, which comes to us without objection, charged that Moulton was an accomplice as a matter of law, and Hughes’ participation in the crime was submitted as a question of fact.

The first three grounds of error challenge the action of the court in admitting the confession into evidence. We must, therefore, include a lengthy summary of the events which led to the confession.

The appellant was under arrest and in custody of the Gregg County Sheriff’s Department for the offense of theft. At the same time he was under suspicion and investigation in the capital murder, the subject of this case. He was taken from Gregg County to Smith County by Ranger Glenn Elliott and Deputy Bill Roach of the Gregg County Sheriff’s Department for the purpose of taking a polygraph test. The transfer took place on April 25,1977, at approximately one o’clock p. m. The polygraph test was to be given by the Department of Public Safety officer Marvin T. McLeroy.

The appellant arrived in Tyler at approximately 1:45 o’clock p. m. Shortly thereafter the interview began for the purpose of polygraph by McLeroy. McLeroy went through the warnings given to a person before he takes a polygraph, and at this point the appellant first voiced his request to remain silent. The appellant informed McLeroy that he did not wish to take the test and that it was not voluntary on the part of the appellant. This was in response to direct examination from the State. At this point in time, according to appellant’s contention, the purpose of being in Smith County had ceased to exist with the refusal to take the polygraph, and all interrogation should have ceased and the appellant returned to Gregg County. However, the questioning continued by the officers.

McLeroy further acknowledged the refusal on the part of the appellant to talk to him on cross-examination. After the refusal to sign the necessary waiver, he began to question the appellant about the offense and the appellant continued to refuse to talk.

McLeroy continued to question the appellant throughout the afternoon on two different occasions during continued interrogation by other officers, and the appellant always refused to talk about the offense.

He further testified that the D.P.S. Headquarters in Tyler was so set up that he could witness the interrogation by other officers, that during the interrogation by other officers he saw and heard the appellant make a request for a “couple of days to get this straight in his mind.” This request was made by the appellant in response to an interrogation, and it was first made to Ranger Glenn Elliott.

It is further shown that Elliott refused to honor the request and continued to question the appellant at will, and that this interrogation continued intermittently for several hours. Elliott further testified that the request for a “couple of days” was made to him at least two different times during the time of the interrogation and that he witnessed the same request made of Deputy Roach during his interrogation. The testimony of Roach is primarily the same as that of Elliott. The testimony from the appellant further explains the numerous requests made by him on the day of interrogation. The appellant made the same requests of all three persons, Elliott, Roach and McLeroy. The request came after the refusal to take the polygraph without an attorney present. Appellant told all three that he did not want to talk about it and wanted a lawyer. All three ignored the request to remain silent and chose to continue interrogation. The appellant never openly agreed to further interrogation by any party.

Unquestionably, from appellant’s own testimony, it was established that he never at any time specifically asked for the appointment of a lawyer or for time to consult with counsel. Likewise, it is equally certain that he was not abused either mentally or physically during the interrogation, and that he fully and completely understood his legal rights as explained to him by Judge Cashell and each of the interrogating officers. It is to be noted, too, that Roach testified he told appellant that if he wanted a lawyer he could request one who would be provided at the State’s expense.

At the outset of our discussion, we note that where the facts adduced at a suppression hearing are in dispute, “the trial judge is the trier of the facts and can accept or reject the testimony of witnesses, including a defendant, in determining the issues before him.” McKittrick v. State, 541 S.W.2d 177, 184 (Tex.Cr.App.1976). With that in mind, we will now consider appellant’s contentions.

Appellant contends that his federal constitutional rights were violated under the rule laid down in Miranda v. Arizona, 384 U.S. 436, 473, 86 S.Ct. 1602, 1627, 16 L.Ed.2d 694, 723 (1966):

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.”

He also relies upon language found in Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313, 321 (1975), to the effect that “his ‘right to cut off questioning’ was [not] ‘scrupulously honored.’ ”

All of the participants in the interrogation process agree that appellant asked each of the officers for time within which to consider the matter before he signed the confession. Thus, the language used by this Court in Hearne v. State, 534 S.W.2d 703, 706-707 (Tex.Cr.App.1976), becomes material. There, it was said:

“While the Supreme Court left unanswered the issue of when and under what circumstances questioning of the accused may resume, it left no room for doubt that the admissibility of a statement taken from a person in custody depends on whether his ‘ “right to cut off questioning” was “scrupulously honored.” ’ ”

We say again as we said in Hearne, supra:

“The clear and inescapable conclusion from the officer’s testimony is that interrogation continued after appellant had made it known that he wished to remain silent.” (Id.)

See also Ochoa v. State, 573 S.W.2d 796, 800 (Tex.Cr.App.1978).

State’s counsel mistakenly relies upon language used in Williams v. State, 566 S.W.2d 919, 922 (Tex.Cr.App.1978), discussing Michigan v. Mosley, supra. As we have noted earlier, while Mosley is a limitation upon the broad language found in Miranda, supra, it is not a repudiation thereof. In Mosley, the interrogation was “about an unrelated homicide.” Here, the continued questioning was about the murder of Mrs. Phillips.

The fact that appellant was not physically mistreated during his incarceration or interrogation does not remove the taint to the confession which was secured in violation of his federally guaranteed constitutional rights as noted in Miranda and Mosley, both supra, and his rights vouched unto him by our Texas constitution and statutes.

Here, the officers, after each had been told that appellant needed a “couple of days to get this straight in [my] mind,” made no pretense of interrupting or changing their line of interrogation. The only change was that the officers in the room would change. It took between three and four hours of interrogation by three officers, in a hidden room out of the county in which he was arrested, in the presence of a lie detector machine, to extract slowly the confession from appellant.

As said in Ochoa, supra:

“Miranda imposes rigid requirements in order to insure the voluntariness of a confession, and these requirements must themselves be satisfied in order for a confession to be admissible.” (573 S.W.2d at 801)

Accordingly, the judgment is reversed and the cause is remanded.

Opinion approved by the Court.

1 . Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).

2 . The arrest warrant under which appellant was apprehended in Colorado was based upon this incident.

3 . This “safe cracker” reference forms the basis of appellant’s fifth ground of error which we do not reach.