Petition for Writ of Certiorari — Merrill v. Alabama
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(\) ‘ Supreme Court, So
98 508 SEP 251998
No. 98- OFFICE OF THE CLERK
IN THE
Supreme Court of the Anited States
OCTOBER TERM, 1997
ROBERT MERRILL,
Petitioner,
Vv.
STATE OF ALABAMA,
Respondent.
On Petition for a Writ of Certiorari
to the Supreme Court of Alabama
PETITION FOR A WRIT OF CERTIORARI
KENNETH R. RAINES
Counsel of Record
WILKINS, BANKESTER, BILES
& WYNNE
201 East 2nd Street
Post Office Box 400
Bay Minette, Alabama 36507
(334) 937-7024
a ee
QUESTIONS FOR REVIEW
Whether the trial court erred in denying Defendant’s
pretrial Motion to Suppress his statements and erred in
admitting the statements into evidence at trial, when the
evidence unequivocally demonstrated that the Defendant
invoked his Fifth Amendment right to remain silent and
refused to give an oral or written waiver of these rights.
i
TABLE OF CONTENTS
QUESTION PRESENTED i
TABLE OF CONTENTS ii
TABLE OF AUTHORITIES iv
DECISIONS BELOW 1
STATEMENT OF
JURISDICTION 1
CONSTITUTIONAL PROVISIONS,
TREATIES, STATUTES,
ORDINANCES, AND REGULATIONS
INVOLVED IN THIS CASE 1
STATEMENT OF THE CASE 2
I. STATEMENT OF THE FACTS 2
REASONS TO ALLOW THE WRIT 5
Il. LAW ENFORCEMENT CANNOT
IGNORE A SUSPECT’S CLEAR
EQUIVOCATION OF HIS RIGHT TO
REMAIN SILENT AND IMMEDIATELY
CONTINUE INTERROGATION ONCE
THE RIGHT HAS BEEN INVOKED.
THEY MUST CEASE INTERROGATION
AT THAT POINT
5
— wie . i “
iii
TABLE OF CONTENTS-—continued
Page
CONCLUSION 12
APPENDIX A
Opinion from the Court of Criminal Appeals
APPENDIX B |
Alabama Supreme Court Denial of Certiorari
APPENDIX C
Excerpts from Trial Record
APPENDIX D
Experts from Trial Court Transcript of Proceedings and
Testimony
APPENDIX E
Supreme Court of the United States Letter Granting
Extension of Time
iv
TABLE OF AUTHORITIES
Arizona v. Fulminante, 499 U.S. 279,
111 S.Ct. 1246, 113 L.Ed.2d 301
(1991)
Delapt v. Dugger, 890 F.2d 285
(11th Cir. 1989), cert. denied,
ees Ove gcg 110 S.C. 2628,
110 L.Ed.2d 648 (1990)
Edwards v. Arizona, 491 U.S. 477,
68 L.Ed.2d 378, 101 So.Ct. 1880
(1981)
Jacobs v. Singletary, 952 F.2d 1282
(11th Cir. 1992)
Lewis v. State, 535 So.2d 228
(Ala. 1988)
Lightbourne v. Dugger, 829 F.2d 1012
(1ith Cir. 1987)
Malone v. State, 452 So.2d 1385
(Ala. Ct. Cr. App. 1984)
Michigan v. Moseley, 423 U.S. 96,
103 S.Ct. 321, 46 L.Ed.2d 313 (1975)
5, 8
Vv
TABLE OF AUTHORITIES-~continued
Page
Moore v. Dugger, 856 F.2d 129
(11th Cir. 1988) 8
Slaton v. State, 680 So.2d 879
(Ala. Cr. App. 1995), aff'd
Ex parte Slaton, 680 So.2d 909
(Ala. 1996) 11, 12
Statutes and Constitutional Provisions
C. Gamble McElroy’s Alabama Evidence
§200.01 (Sth Ed. 1996) 6
l
DECISIONS BELOW
The Circuit Court of Baldwin County, Alabama, the
Honorable James H. Reid presiding, issued an order denying
Merrill’s Motion to Suppress his statement on January 27,
1997. State v. Merrill, CC-96-1198, CC-96-1199 and CC-
96-1257. (January 27, 1997). The Alabama Court of
Criminal Appeals affirmed the order of the trial court by
memorandum. State v. Merrill, No. CR-96-1041, opinion
at November 14, 1997. The Alabama Supreme Court denied
Merrill’s Petition for Writ of Certiorari without opinion on
May 11, 1998. State v. Merrill, No. 1970857.
STATEMENT OF JURISDICTION
The Alabama Court of Criminal Appeals affirmed the
Circuit Court’s denial of Merrill’s suppression motion on
November 14, 1997. State v. Merrill, CR-96-1041. Merrill
then filed for Writ of Certiorari to the Alabama Supreme
Court and his Petition was denied on May 22, 1998. State
v. Merrill, 1970857. Merrill was granted an extension of
time until September 25, 1998 by the United States Supreme
Court to file his Petition for Writ of Certiorari. Merrill asks
this Court to review the Alabama Supreme Court’s
affirmance of the denial of the suppression motion. This
Court has jurisdiction to review the judgment of the Alabama
Supreme Court under 28 U.S.C. §1257. Section 1257 gives
the Court jurisdiction to review the decision affirming the
denial of the suppression motion.
CONSTITUTIONAL PROVISIONS, TREATIES,
STATUTES, ORDINANCES AND REGULATIONS
INVOLVED IN THIS CASE
2
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a Grand Jury, except in cases arising in the
land or naval forces, or in the Militia, when in actual service
in time of war or public danger; nor shall any person be
subject for the same offense to be twice put in jeopardy of
— or limb; ak SO SSE OS
or senperty.. etthent. dua srmens of lene ‘nor shall private
property be taken for public use without just compensation.
STATEMENT OF THE CASE
I, STATEMENT OF FACTS:
The Appellant, Robert Lee Merrill, was originally
arrested and charged with sexually abusing his minor
daughters on June 21, 1996. Merrill and his wife. Sarah,
had the following children: Alana, Faline, Robert and
Miranda. Merrill’s stepsister, Crystal, also lived with him
during this time.
On or about December 16, 1996, a Motion to
Suppress the Defendant’s statement was filed and on January
27, 1997 a hearing was held with respect to said matter.
(Appendix D, p. 217-219). The trial judge denied the
Motion to Suppress the statements and the statements were
introduced at trial. The facts surrounding the taking of the
statement are presented below.
This case originated when a confrontation ensued
between Sarah Merrill and her daughter, Alana Merrill, and
a discussion was had between the two parties implicating
Robert in a sexual abuse incident involving Alana. Upon
receiving this information, Sarah Merrill went to the
iste piel ata asee scit
3
Robertsdale Police Department and a report was forwarded
to the Department of Human Resources and members of the
Baldwin County Sheriff's Department. Shortly thereafter,
members of the Baldwin County Sheriff's Department were
dispatched to arrest Mr. Merrill and charge him with District
Court warrants alleging rape and sexual abuse against the
previously listed parties. The detectives assigned to
investigate the case arrested Mr. Merrill and immediately
transported him to the Robertsdale Police Department for
questioning. (Appendix D, p. 177-181).
When the Appellant was first arrested and taken to
the Robertsdale jail for questioning, he was read his entire
Miranda rights and asked by investigators to speak about the
case. The Defendant was advised he did not have to discuss
the case and was free to cease questioning at any time.
(Appendix D, p. 171-181, 1039, 1040).
Immediately after being advised of his rights, the
Appellant clearly responded "I don’t want to talk about this
right now." (Appendix D, p. 187-200, 1068-1069).
Further, the Appellant corroborated his refusal to speak by
refusing to sign the written waiver portion contained in the
Miranda form. (Appendix D, p. 187-200, 1046, 1047).
Immediately afterward, the detectives initiated
conversation with the Appellant. (Appendix D, p. 187-200,
1069). They elaborated about how burdensome these types
of cases were and how children never lie about their
accusations. (Appendix D, p. 192-193). After finishing
their speech, the detectives stopped and waited for a
response from the Appellant. (Appendix D, p. 192-193).
The accused remained silent. (Appendix D, p. 192-193).
officers. (Appendix D, p. 200-212).
After the third refusal, the State claimed the accused
then made a "voluntary" statement of some kind. (Appendix
D, p. 1125). The detective does not remember what the
statement referenced. (Appendix D, p. 1125).
sacifion st Senses (Appendix D, p. 1274-1278). Again,
the officers tried to coerce the accused into making a
statement and then again initiated further conversation.
Finally, when all of the Defendant’s refusals were ignored,
the accused told the officers that he committed all of the acts
contained on the paper. (Appendix D, p. 1127). Only then,
was the interrogation ceased.
The above cited facts were clearly enunciated at the
Motion to Suppress, and trial, not by the Defendant, but by
" ae ont 2 tl
ee ee oe a a ee
The Alabama Supreme Court’s decision in the Merrill
case conflicts not only with it’s own decisions, but with the
decisions of the United Siates Court of Appeals for the
Eleventh Circuit and the Supreme Court of the United States.
The undisputed testimony indicated that Merril] invocated
repeatedly and unambiguously, that he wished to remain
silent. Merrill stated specifically "I don’t want to talk about
this right now." The officers immediately refused to respect
Merrill’s rights to silence and immediately refused to case
interrogation. The lower courts failed to address this
problem and upheld the admission of the statement on a
completely unrelated theory that Merrill did not really refuse
to speak, he was just embarrassed. The lower courts
specifically failed to factor the officers’ unwillingness to
cease questioning into the totality of circumstances analysis
as required by Jacobs vy. Singletary, 952 F.2d 1282 (11th
Cir. 1992) and Michigan y. Moseley, 423 U.S. 96, 103 S.Ct.
321, 46 L.Ed.2d 313 (1975).
Because the decisions below conflict with the
decisions of other courts, Merrill respectfully asks this Court
to grant a Writ of Certiorari.
Il. LAW ENFORCEMENT CANNOT IGNORE A
SUSPECT’S CLEAR EQUIVOCATION OF HIS RIGHT
TO REMAIN SILENT AND IMMEDIATELY
CONTINUE INTERROGATION ONCE THE RIGHT
HAS BEEN INVOKED. THEY MUST CEASE
INTERROGATION AT THAT POINT.
6
Because all extra judicial concessions are prima facia
involuntary, the State has the burden of proving
voluntariness. Edwards v. Arizona, 491 U.S. 477, 68
L.Ed.2d 378, 101 So.Ct. 1880 (1981); Arizona v.
Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.&d.2d
301 (1991); Malone v. State, 452 So.2d 1385 (Ala. Ct. Cr.
App. 1984). Unless the trial judge’s conclusion that the
inculpatory statement was voluntary and supported by
evidence, it will not be upheld. Malone v. State, 452 So.2d
1385 (Ala. Cr. App. 1984).
"The test applicable in state and federal prosecution
is whether the confession was free and voluntary; in other
words it must not have been extracted by any sort of threats
or violence, nor obtained by direct or implied promises,
C. Gamble McElroy’s Alabama Evidence, §200.01 (Sth Ed.
1996). The voluntariness must be based on substantial
evidence. Lewis v. State, 535 So.2d 228 (Ala. 1988).
In Jacobs v. Singletary, 952 F.2d 1282 (11th Cir.
1992), three defendants were charged with murder and
kidnapping and eventually taken into custody for questioning.
The facts almost mirror the facts in this case. After being
arrested, Jacobs was read her Miranda rights and did not
respond. Jacobs was then asked her name and responded "it
didn’t matter and it didn’t make a difference." She was then
asked to sign the Miranda rights card and refused. Shortly
after, upon arriving at the police station, she again refused
to answer questions. Jacobs, at 1292.
Within twenty minutes of the above Miranda
questioning, Jacobs was questioned again, read Miranda
rights, executed a waiver of rights form, and made a
statement. Jacobs, at 1293.
7
About an hour later, a third conversation ensued with
law enforcement and the Defendant. Jacobs, at 1293.
The U. S. Court of Appeals directly addressed each
statement and ruled that the first two statements referenced
above were taken in violation of the Defendant’s Miranda
rights, that the police failed to scrupulously honor the
Defendant’s right to remain silent, and that the two
statements should have been suppressed at trial. Jacobs, at
1282. Further the U. S. Court of Appeals directly set out
the law regarding a suspect’s invocation of his right to
remain silent.
"Once a suspect demonstrates her desire to
terminate questioning, law enforcement
officials may not take statements from her
unless they scrupulously honor her right to
remain silent; although determining whether
police have scrupulously honored a Suspect’s
right requires a case-by-case approach,
prophylactic standard minimally requires that
for a significant period of time after suspect
has exercised her right to remain silent, police
must refrain from questioning her unless
Suspect both initiates further conversation and
waives previously asserted rights to silence.
U.S.C.A. Const. Amend. 5."
“Determination whether there has been a
"significant period’ of noninterrogation
following invocation of right to remain silent,
as an inquiry merely corollary to that of
determining whether police have scrupulously
honored a suspect’s right to cut off
questioning, involves careful scrutiny of
8
totality of the circumstances. U.S.C.A.
Const.Amend. 5"
Jacobs, at 1283-1284.
This standard is further enunciated in Lightbourne v.
Dugger, 829 F.2d 1012 (11th Cir. 1987).
Law enforcement officials must cease an interrogation
if the suspect provides merely an equivocal or ambiguous
indication of her desire to remain silent. Delapt v. Dugger,
890 F.2d 285 (11th Cir. 1989), cert. denied, __: U.S. ___,
110 S.Ct. 2628, 110 L.Ed.2d 648 (1990). The suspect must
only in some manner evidence a refusal to talk further.
Moore v. Dugger, 856 F.2d 129, (11th Cir. 1988).
In Jacobs, the U. S. Court of Appeals examined three
factors from Michigan v. Moseley, 423 U.S. 96, 103 S.Ct.
321, 46 L.Ed.2d 313 (1975).
(1) Whether the police immediately ceased
interrogation once the suspect invoked his
right to silence.
(2) Whether the police resumed
questioning only after the passage of
"significant time" and after administration of
fresh Miranda warnings; and
(3) Whether the police in their second
round of questioning focused on a different
crime.
In Jacobs, the Court noted that the Defendant
established that she wished to cut off questioning and that
9
her non-responsive and responsive statements required the
police to cease interrogation. The Court further noted that
the continued conversation by law enforcement was only an
attempt to elicit further information from the suspect.
Accordingly, the statement was held inadmissible. Jacobs,
at 1293.
Also, the Court noted that the twenty minute delay
between questioning was not a Significant period of time
between the invocation of silence and the actual delivery of
the second statement. Again, the statement was ruled
inadmissible. Jacobs, at 1293.
In the case before this Court, we have almost an
identical invocation of silence, with the exception that Robert
passed by n_the continued interrogation. Nowhere did
the officer try and clarify Mr. Merrill’s Statement; the reason
no clarification statement was made is because the officer
KNEW, contrary to the State of Alabama’s assertion in their
brief, that "I don’t want to talk" means "I don’t want to
talk." The officer refused to cease interrogation and decided
to take his chances with the Court. Also, just as in Jacobs,
Robert Merrill refused to Sign the waiver form at the same
time he refused to discuss the case with police. How could
an invocation of silence become any clearer than the exact
fact pattern before this Court?
Yet incredulously, the police would have this Court
believe the statement ultimately received was voluntary.
This position does not hold water and is seen in the
following testimony:
10
KEN RAINES:
Q.
“Let me ask you deputy, if you
believe that a person, when
you go and interrogate them,
does not have to talk to you,
what else do they have to say
besides I don’t want to talk to
you, to get you to recognize
their rights?”
DEPUTY:
A. "If. he would have told me, I
do_not want to talk to you, I
would have interpreted that as,
-- Vv
nights. But his statement was,
I do not want to talk to you
about it nght now, or talk to
you right now. I - indicating
that he might later."
"So if he makes the statement,
I do not want to talk to you,
that’s enough of an invocation
right, in your opinion, and if
you add "right now" to that
sentence, then that’s different
in your opinion?"
"That indicates that he might
be willing to talk about it
later."
a i a li oh ta wre
1]
Q. "If he makes the statement
that, I do not want to talk to
you, period, in your presence,
and he makes that statement to
Deputy Cook, then you are
saying that you had to stop and
cease questioning when you
heard it, is that correct?"
A. "If he would have said, I do
not want to talk to you
period?"
Q. “Yes sir."
A. "Yes sir.”
The fallacy behind this position is two-fold. First,
: : iad :
the policeman did _not_wait_until later to try and_re- 1 He j fiatel ‘ued on witl
the interrogation. (Appendix D, p. 191). Secondly, if one
enunciates that "I do not want to talk to you,” what is to
keep the officer from continuing to initiate conversation on
the premise that the interrogator is unsure if the accused is
referring to right now or later with respect to conversation?
The State’s position is unsupported by the law of this State,
the law of this land, and good old fashioned common sense.
In the lower Court’s previous memorandum affirming
the trial court, the lower Court tried to use Slaton v State,
680 So.2d 879 (Ala. Cr. App. 1995), aff'd Ex parte Slaton,
680 So.2d 909 (Ala. 1996) as persuasive authority to indicate
that the invocation of silence by this Defendant was just the
product of embarrassment or fear. Such an argument holds
no water.
12
In Slaton, the Alabama Supreme Court correctly held
that the Defendant’s response "Oh, God, I don’t feel like
going through all this" is ambiguous and was not an
unequivocal invocation of the right to remain silent. Slaton,
at 886-887.
The Defendant in this case said "I don’t want to talk
a tien et sn secrogempeeirytd
The officers could have waited, come back later, and
inquired if the suspect would talk to them. These deputies
chose not to wait, not to follow the law, and to roll the dice.
If the U. S. Supreme Court and the U. S. Court of Appeals
for the Eleventh Circuit’s prior interpretation of the law as
to an individual’s right to remain silent carries any weight,
then this decision will be reversed. Counsel for the
Defendant submits this is bad law.
How can one argue that when a person says "I don’t
want to talk about it,” that the statement means something
else? That is the State’s position. If the State’s position is
upheld, then from now own, when a suspect says, "I don’t
want to talk about it,” that’s not clear enough to tell a person
he wishes to remain silent. If that’s the case, what other
magic language exists that is clear enough to tell a person
that you don’t want to talk about it?
CONCLUSION
Robert Merrill implores this Court to uphold an
individual’s right to remain silent and not encourage law
enforcement’s disregard for the law or create a brand new
language necessary to convey one’s thoughts to another.
13
As such, Merrill respectfully asks this Court to grant
a Writ of Certiorari to address the lower courts’ rulings
regarding the invocation of silence by Merrill.
Respectfully submitted,
KENNETH R. RAINES
Wilkins, Bankester, Biles & Wynne
Post Office Box 400
Bay Minette, Alabama 36507
(334) 937-7024
Counsel of Record for Petitioner
la
APPENDIX A
IN THE SUPREME COURT OF ALABAMA
May 22, 1998
1970857
Ex parte R. M. PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS (In re: R. M.
V. State) (96-1041) (Baldwin: CC-96-1198;-1199;-1257)
CERTIFICATE OF JUDGMENT
Writ Denied
The above cause having been duly submitted, IT IS
CONSIDERED AND ORDERED that the petition for writ
of certiorari is denied.
COSTS TAXED TO PETITIONER.
ALMON, J. — Hooper, CJ., Houston, Cook and Lyons,
JJ., concur.
I, Robert G. Esdale, as Clerk of the Supreme
Court of Alabama, do hereby certify that the
foregoing is a full, true and correct copy of the
instrument(s) herewith set out as Same appear(s) of
record in said Court.
Witness my hand this 22 day of May, 1998
/s/ Robert G. Esdale
Clerk, Supreme Court of Alabama
2a
APPENDIX B
COURT OF CRIMINAL APPEALS
STATE OF ALABAMA
Judicial Building, 300 Dexter Avenue
P.O. Box 301555
Montgomery, AL 36130-1555
FRANCIS ALLEN LONG, SR. Clerk’s Office
Presiding Judge (334) 242-4590
H. WARD McMILLAN
SUE BELL COBB
JEAN WILLIAMS BROWN
PAMELA W. BASCHAB
Judges
[stamp—RELEASED; NOV 14 1997; CLERK;
ALA COURT CRIMINAL APPEALS]
MEMORANDUM
CR-96-1041 Baldwin County Circuit Court
No. CC 96-1198, CC 96-1199, CC 96-1257
R. M. v. State
Affirmed by memorandum.
The appellant was convicted in a jury trial of nine counts
of sexual abuse in the first degree and six counts or rape in
the first degree. Specifically, the appellant was convicted of
one count of statutory sexual abuse in the first degree, in
violation of § 13A-6-66(a)(3), Code of Alabama 1975, and
six counts of rape by forcible compulsion, in violation of
§ 13A-6-61(a)(1), Code of Alabama 1975, all committed
against A.M., his step-daughter. He was convicted of four
counts of sexual abuse in the first degree by forcible com-
3a
pulsion, in violation of § 13A-6-66(a)(1), Code of Alabama
1975, all committed against C.R.M., his step-sister. Finally,
he was convicted of four counts of statutory sexual abuse in
the first degree, in violation of § 13A-6-66(a)(3), Code of
Alabama 1975, all committed against F.M., his daughter.
The trial court sentenced the appellant to serve ten years
in prison on the one count of sexual abuse and to life im-
prisonment on each of the six counts of rape involving A.M.
It sentenced him to serve ten years in prison on each of the
four counts of sexual abuse in the first degree involving
C.R.M. It also sentenced him to serve ten years in prison on
each of the four counts of sexual abuse in the first degree
involving F.M. The court ordered the sentences for all
counts involving the same victim to run concurrently, while
ordering the sentences imposed under each indictment! to
run consecutively. The appellant raises several issues in this
appeal.
I.
The appellant argues that because Deputies Cook and
Stewart? of the Baldwin County Sheriff's department ob-
tained his statement by violating his right to remain silent
under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694,
86 S. Ct. 1602 (1966), the trial court committed reversible
error by denying his motion to suppress his statement.
Because the appellant never unequivocally invoked his rights
under Miranda, we disagree. :
' The grand jury issued three indictments against the appellant. Each
indictment included the allegations of the acts committed by the appellant
against a different victim.
* Stewart is referred to at various times in the record as ‘Sergeant
Stewart,’’ ‘““Deputy Stewart,’’ and ‘‘Investigator Stewart.”’
4a
The record reflects that, on June 21, 1996, after Stewart
arrested the appellant at his home, Stewart gave the appel-
lant his Miranda rights from memory, but did not ask him
any questions. After the appellant was taken to the Roberts-
dale Police Department, Stewart, joined by Deputy Cook,
began to interview him. Before interviewing the appellant,
Cook gave him his Miranda rights a second time, this time
using a ‘‘Statement of Miranda Rights’’ form. This form set
forth the individual rights guaranteed an accused under
Miranda anc contained a brief section, followed by a signa-
ture line, for one to signify that he had waived his Miranda
rights.
Both Cook and Stewart testified that no one threatened the
appellant or made any promises to induce him to make a
Statement. The two deputies testified that no one either
suggested that things would go easier for the appellant if he
cooperated and gave a statement, or implied that things
would be more difficult for him if he refused to cooperate.
The deputies testified that the appellant’s speech was
coherent and he did not appear to be under the influence of
drugs or alcohol at that time. Cook stated the appellant
appeared to understand the rights read to him.
Cook read each of the five rights included on the form to
the appellant. As Cook finished reading him each right, he
asked the appellant to place his initials beside that right.
After placing his initials beside the fifth right, the appellant
told Cook ‘‘he didn’t want to talk about that [the case] right
now’’ and refused to sign the waiver form. (R. 189); (R.
1124,.
’ The appellant raised the admissibility of his statement to Deputies
Cook and Stewart in a pretrial motion, and a hearing on this issue was
held immediately prior to his trial. The court denied the appellant’s
motion before the beginning of his trial. The appellant also raised this
issue at trial, and the court once again allowed the parties to present
evidence in support of their respective claims. We have summarized all
the relevant evidence presented on both occasions.
Sa
After this remark, Stewart continued to talk to the appel-
lant for several minutes about the case generally, but he did
not ask him any questions. Stewart stated that he later asked
the appellant if he was too embarrassed to talk about what
happened. Stewart testified that after the appellant told the
deputies that he did not want to talk about the allegations
against him, he asked the appellant if he was invoking his
Miranda rights and that the appellant did not respond to this
question. (R. 190-91). Stewart told the appellant the allega-
tions he and Cook were investigating came from the appel-
lant’s children, not from him and Cook. Stewart told the
appellant that they took children’s claims of sexual abuse
seriously because children did not make such claims lightly.
Stewart said to the appellant that, if he had a problem, the
two deputies would be glad to talk with him about it because
that was why they were there. Stewart further suggested that
the appellant needed to consider his relationship with the
children and what they were dealing with. As Stewart was
talking to him, the appellant made a sudden comment about
one of the girls. Cook did not hear what the appellant said,
but stopped him and read him his Miranda rights for a
second time from the form.*
Once the appellant signed the waiver section of the form,
Cook handed him one complaint at a time and explained to
him what that complaint charged him with. Cook then
allowed the appellant to read each complaint himself. Cook
testified that, after he read each complaint, the appellant
commented, ‘““Yes, that happened.’’ Cook testified the
appellant was initially uncertain as to the dates in some of
4 Stewart and Cook gave the appellant his Miranda rights a total of
three times. Stewart gave the appellant his rights once orally as Stewart
placed him under arrest at his home. Deputy Cook read him his rights
twice using the form while the appellant was at the Robertsdale Police
Department.
6a
the complaints, but he then agreed that if those were the
dates the girls said the acts happened, then that’s when they
happened.
The appellant testified at trial but did not testify at the
suppression hearing. The appellant testified that after they
read him his rights, he told the deputies that he ‘‘did not
want to talk to anybody, period. I just wanted them to leave
me alone.’’ (R. 1275). The appellant testified he told one of
the deputies he had no idea why he was arrested and that the
deputy handed him all of the complaints at one time, telling
him these were the charges. The appellant denied he had had
an opportunity to read any of the complaints. The record
contains no indication, other than the appellant’s own testi-
mony, that the appellant asked to speak to an attorney.
In Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350,
129 L.Ed.2d 362 (1994), the United States Supreme Court
reasoned that, to adequately invoke his right to counsel
under Miranda, a suspect’s request for must be clear enough
so that a reasonable police officer under the circumstances
would be aware that the suspect is requesting counsel. /d.,
114 S.Ct. at 2355. ‘‘Invocation of the Miranda right to
counsel ‘requires, at a minimum, some statement that can
reasonably be construed to be an expression of a desire for
the assistance of an attorney.” McNeil v. Wisconsin, supra,
501 U.S., at 178, 111 S.Ct. at 2209.’" Davis v. United
States, 512 U.S. at 459.
In Ex parte Cothren [Ms. 1961250, August 22, 1997] __
So.2d ____ (Ala. 1997), the Alabama Supreme Court af-
firmed our court’s refusal to extend the rule of law in
Edwards v. Arizona, “*1 U.S. 477, 101 S. Ct. 1880, 68 L.
Ed. 2d 378 (1981), to cases in which the appellant makes
***an ambiguous or equivocal reference to an attorney.’ ”’
slip op. at 2. (Citation omitted). In holding that the appel-
lant’s purported request for counsel was equivocal because it
7a
was capable of equally plausible, differing interpretations,
the Cothren court reasoned as follows:
‘* “(T]he suspect must unambiguously request counsel.
As we have observed, ‘‘a statement either is such an
assertion of the right to counsel or it is not.’’ Smith v.
Illinois, 469 U.S., at 97-98 (brackets and internal
quotation marks omitted). Although a suspect need not
‘“*speak with the discrimination of an Oxford don,”’
post, at 476 (Souter, J., concurring in judgment), he
must articulate his desire to have counsel present
sufficiently clearly that a reasonable police officer in
the circumstances would understand the statement to be
a request for an attorney. If the statement fails to meet
the requisite level of clarity, Edwards does not require
that the officers stop questioning the suspect. See
Moran v. Burbine, 475 U.S. 412, 433, n.4, 106 S.Ct.
1135, 89 L.Ed.2d 410 (1986) (‘‘[T]he interrogation
must cease until an attorney is present only [i]f the
individual states that he wants an attorney’’) (citations
and internal quotation marks omitted).
Ex parte Cothren, supra.
In Slaton v. State, 680 So.2d 879 (Ala.Cr.App. 1995),
aff'd, Ex parte Slaton, 680 So.2d 909 (Ala. 1996), the
appellant, ‘‘an admittedly scared’’ 17 year-old, was arrested
for murder and rape and taken to the police station for ques-
tioning. One of the detectives interrogating Slaton read him
his Miranda warnings and Slaton signed a waiver form
which relinquished his rights under Miranda. During his
interrogation, the appellant exclaimed, ‘‘Oh, God, I don’t
feel like going through all this.’’ On appeal, Slaton argued
that this statement meant that he wanted to stop talking to
the police and was invoking his right to remain silent. The
Slaton court noted that:
8a
‘*The United Stated Supreme Court has held that police
officers must inform people of their constitutional rights
before beginning custodial interrogations. Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 166 L.Ed.2d
694 (1966). Included in the right to remain silent is a
right to cut off questioning. Miranda, 384 U.S. at 474.
When a defendant invokes his right to remain silent,
that request must be ‘scrupulously honored.’ Michigan
v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313
(1975).
‘**This court recently stated that whether someone
has invoked his right to remain silent is determined
on a case-by-case basis.
** “Whether there was a waiver of the right to
remain silent and the right to counsel and whether
the confession was knowingly, voluntarily, and
intelligently made must be decided from the par-
ticular facts and circumstances of each case, in- -
cluding the background, experience, and conduct
of the accused—the totality of the circumstances.’
**Holmes v. State, 598 So.2d 24, 26 (Ala.Crim.App.
1992); see also Thomas v. State, 373 So.2d 1167 (Ala.
1979), vacated on other grounds, 448 U.S. 903, 100
S.Ct. 3043, 65 L.Ed.2d 1133 (1980); Magwood v.
State, 494 So.2d 124 (Ala.Crim.App. 1985), aff'd, 494
So.2d 154 (Ala.), cert. denied, 479 U.S. 995, 107
S.Ct. 599, 93 L.Ed.2d 599 (1986).”’
Slaton v. State, 680 So.2d at 886-87. In affirming the trial
court’s judgment, this court characterized the appellant’s
remark as follows:
‘“We are not persuaded that Slaton’s response, “Oh
God, I don’t fell like going through all this,” was an
unequivocal invocation of his right to remain silent. It
9a
does not strike us as any kind of conscious request that
he be allowed to remain silent. Instead, Slaton’s
comment seems a natural outburst borne of the fear and
anxiety created by the circumstances in which he found
himself. Therefore, we hold that Slaton’s statement was
not an invocation of his right to remain silent, that his
Miranda rights were not violated, and that his statement
was properly used at trial.”’
Slaton v. State, 680 So.2d at 887.
Moreover, in affirming our judgment, the Alabama
Supreme Court concluded that, taken in its proper context,
the appellant’s outburst had nothing to do with an attempt to
invoke his Miranda rights. Rather, the court determined
that the appellant simply disliked having to discuss ‘‘the
sexual details of what he says happened... .”’ Ex parte
Slaton, 680 So.2d at 914.
Here, as in Slaton, the appellant’s statement seems to be
the product of his fear and embarrassment caused by the
discovery of his crimes, not an attempt to invoke his rights
to remain silent or speak with an attorney. Cook and Stewart
could have reasonably interpreted the appellant’s comment
that ‘‘he didn’t want to talk about that [the case] right now’’
to mean that he would not object to discussing the case a few
minutes later. There is no reason why appellant’s comment
would have alerted a reasonable police officer under the
same circumstances to the fact that the appellant was request-
ing counsel. Davis v. United States, supra; McNeil v.
Wisconsin, supra; Ex parte Cothren, supra.
Il.
The appellant contends that the state failed to offer suffi-
cient evidence to support each of his fifteen convictions. We
disagree.
iliac
10a
In determining the sufficiency of the evidence to sustain a
conviction, a reviewing court must accept as true all evi-
dence introduced by the State, accord the State all legitimate
inferences therefrom, and consider all evidence in a light
most favorable to the prosecution. Faircloth v. State, 471
So. 2d 485 (Ala. Crim. App. 1984), aff'd, 471 So. 2d 493
(Ala. 1985). Furthermore, a judgment of conviction will not
be set aside on the ground of insufficiency of the evidence
unless, allowing all reasonable presumptions for its correct-
ness, the preponderance of the evidence against the judgment
is so decided as to clearly convince the reviewing court that
it was wrong and unjust. Jackson v. State, 516 So. 2d 726
(Ala. Crim. App. 1985).
Section 13A-6-66, Code of Alabama 1975, states, in
pertinent part:
**(a) A person commits the crime of sexual abuse in the
first degree if:
‘*(1) He subjects another person to sexual contact by
forcible compulsion; or
‘*(3) He, being 16 years old or older, subjects another
person to sexual contact who is less than 12 years old.”’
‘*Sexual contact’’ is defined in § 13A-6-60(3), Code of
Alabama 1975 as ‘‘[aJny touching of the sexual or other
intimate parts of a person not married to the actor, done for
the purpose of gratifying the sexual desire of either party.’’
Section 13A-6-61(a)(1), Code of Alabama 1975, which
provides that ‘‘{[a] male commits the crime of rape in the
first degree if . . . [hJe engages in sexual intercourse with a
female by forcible compulsion.’’ Section 13A-6-60(8), Code
of Alabama 1975, defines ‘‘forcible compulsion’’ as
‘‘[p]hysical force that overcomes earnest resistance or a
threat, express or implied, that places a person in fear of
lla
immediate death or serious physical injury to himself or
another person.’’ Jd. Evidence that victim engaged in sexual
intercourse with defendant because she was scared that she
would be killed unless she acquiesced constituted ‘‘forcible
compulsion’’ within the meaning of the rape in the first
degree statute. Alldredge v. State, 453 So. 2d 1332 (Ala.
Crim. App. 1984). The element of forcible compulsion for
both first degree rape and sexual misconduct is identical.
Martin v. State, 504 So. 2d 335 (Ala. Crim. App. 1986).
‘In Powe v. State, 597 So.2d 721 (Ala. 1991), this
Court held that the element of forcible compulsion
could be established by the relationship of a child
victim with the defendant charged with a sex crime
involving forcible compulsion.”’
Howell v. State, 636 So.2d 1260, 1261 (Ala. 1993). The
Howell and Powe courts recognized that an implied threat of
disciplinary action exists between a child and an adult
relative because of the authoritative role the adult plays in a
child’s world. Thus, the standard for ‘‘forcible compulsion’’
must be somewhat more stringent where the actor is
someone in a parent-type role. Cf. Powe v. State, 597 So.2d
721, 728 (Ala. 1991).
In this case, the State established sufficient evidence to
support each of the appellant’s fifteen convictions. Each of
the counts charged against the appellant appears to involve
continuous conduct by the appellant, and the State was
required under the doctrine of election to elect a specific
offense it sought to prove. J.D.S. v. State, 587 So.2d 1249,
1256 (Ala.Cr.App. 1991). Although the State does have to
prove that the elected incident occurred, the time and place
of the offense are not necessary elements of a sexual of-
fense. Dilbeck v. State, 594 So.2d 168, 174 (Ala.Cr.App.
1991). The testimony of appellant’s child, step-child, and
his sister, if believed by the jury, was sufficient evidence
12a
upon which to support the appellant’s convictions. Myers v.
State, 677 So. 2d 807 (Ala. Crim. App. 1995). Each of the
victims testified that the appellant had either forcible sexual
contact or intercourse with them or that they were under the
age of twelve when the appellant had sexual contact with
them. Much of the appellant’s conduct was witnessed by his
youngest daughter, M.R.M., and by his son, R.K.M.
Moreover, R.K.M. was forced by the appellant to have sex
with his sister while the appellant watched.
The record reflects that the appellant’s child, step-child
and sister feared the appellant. The appellant was either
trained in the martial arts or caused the children to believe
that he was. A.M. testified that the appellant ‘‘knew all the
pressure points’’ one could use to kill another person and he
could break bricks with his bare hands. A.M. testified that
the appellant had threatened to kill her if she ever told
anybody what he had done to her. Clearly, the State not only
established ‘‘forcible compulsion,’’ as defined by § 13A-6-
60(8), Code of Alabama 1975, but also under the standards
of Powe v. State, 597 So.2d 721, 728 (Ala. 1991), as well.
That, together with the children’s testimony that the acts
took place, was sufficient to support the appellant’s convic-
tions.
Ill.
The appellant argues that the trial court erred to reversal
by finding that he failed to establish a prima facie violation
of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106
S. Ct. 1712 (1986). We disagree.
Here, there were five blacks on the venire. The State used
two of its strikes to remove blacks from the venire, leaving
three blacks on the jury. In his attempt to make a prima
facie showing of discrimination, appellant’s counsel did not
bring to the trial court’s attention any factor that might show
———
13a
that the prosecutor discriminated against jurors on the basis
of race. The tr 4l court found that the appellant had not
made a prima facie showing of purposeful racial discrimina-
tion and that the State was therefore not required to give
reasons for its strikes. We agree that the appellant failed to
establish a prima facie case under Batson and Ex parte
Branch, 526 So.2d 609 (Ala. 1987). Ashley v. State, 606
So.2d 187 (Ala.Cr.App. 1992); Hood v. State, 598 So.2d
1022 (Ala.Cr.App. 1991); Parker v. State, 571 So.2d 381
(Aia.Cr.App. 1990).
IV.
A.
The appellant argues the trial court erred by allowing the
State to impeach him with a copy of a jail intake report
because the report was unauthenticated hearsay and thus
inadmissible for impeachment purposes. We disagree.
S.M., the appellant’s wife, testified for the State. During
cross-examination, the appellant asked her if she had been
diagnosed with a sexually transmitted disease when their
child M.R.M.° was born. S.M. answered that she had been
diagnosed with herpes at that time. The appellant then asked
his wife if they had ever engaged in unprotected sexual
intercourse after she was diagnosed with herpes and she
replied that they had. Finally, the appellant asked his wife
whether any of her children had been examined to determine
if they had any sexually transmitted diseases and she re-
sponded that they had not.
* M.R.M. was seven years old at the time of the appellant’s trial and
was not a victim in this case. She did witness some of the events alleged
in the three indictments against the appellant and testified against the
appellant at trial.
l4a
During the trial, defense counsel asked the appellant
whether he ‘‘could have’’ contracted [herpes] from unpro-
tected sex with his wife, and the appellant testified that ‘‘I
don’t see how I couldn’t . . . .”” During cross-examination,
the prosecutor showed the appellant what he identified as the
jail intake form that was completed from information sup-
plied by the appellant when he was booked. This form was
signed by the appellant and asked a number of questions
concerning the appellant’s health. The appellant admitted
during cross-examination that the intake form indicated that
he did not have any sexually transmitted diseases. This form
was not offered into evidence by the State, but was used
solely to impeach the appellant.
‘‘A common method of impeachment is to ask a witness
on cross-examination about the witness’ prior statements that
are inconsistent with present trial testimony. Such self-
contradiction has long been held relevant to credibility
whether the inconsistent statement is oral or in
writing . . . ."” C. Gamble, Gamble’s Alabama Rules of
Evidence § 613(a) (1995) (footnotes omitted). See also, Rule
613, Ala.R.Evid.
The appellant complains the State failed to lay the proper
predicate for impeachment using this document. However,
the appellant’s argument is clearly refuted by Rule 613(b),
Ala.R.Evid.:
**(b) Extrinsic evidence of a prior inconsistent state-
ment by a witness is not admissible unless the witness
has been confronted with the circumstances of the
statement with sufficient particularity to enable the
witness to identify the statement and is afforded an
opportunity to admit or to deny having made it... .”’
The appellant’s argument that the trial court improperly
impeached him by using his responses on the jail intake form
is therefore without merit.
15a
B.
The appellant further argues he was not given a copy of
the appellant’s jail intake or ‘*hbooking’’ form in discovery
and that the State’s use of this document to impeach hin
violated Rule 16, A.R.Crim.P. The appellant therefore
argues that he is entitled to a new trial. We disagree.
Discovery by the defense in a criminal case is governed
by Rule 16.1, Ala.R.Crim.P. We are unable to find any
provision of Rule 16.1 that would require the State to
provide a record whose sole purpose is to document the
physical condition of the defendant when he is booked into
jail. We have also reviewed the appellant’s motions for
discovery and production and can find no pleading filed by
the appellant that would require the production of his jail
intake form. Because the State had no obligetion under Rule
16.1, Ala.R.Crim.P., to produce the appellant’s jail intake
form, the trial court did not err by allowing the State to
impeach the appellant with this form.
V.
The appellant next argues that ‘(t]he trial court erred in
allowing the prosecutor . . . to improperly comment on the
Defendant’s Fifth Amendment right of self incrimination
(sic) and impose upon him a burden to present evidence, a
burden which he did not possess.’’ We disagree.
On cross-examination, the appellant's attorney asked two
of the victims, A.M. and C.R.M., and Deputy Cook
whether any law enforcement officers had examined the
appellant’s employment records at Fovil Manufacturing.
Defense counsel also asked the appellant ‘‘has anybody from
the Sheriff’s office gone out and pulled any of your work
records.’’ The appellant replied, ‘“‘Not to my knowledge.’
The appellant was then asked a series of questions about his
employment records at Fovil Manufacturing, his wife's
i
16a
employment at the Riviera Centre, and the victim’s school
records. Thereafter, the following exchange occurred be-
tween defense counsel and the appellant:
‘*(Defense Counsel]: Let’s talk about all of these dates.
Would you agree that if we had
those records before us, that we
could pin down some times, to say
absolutely some things could not
have happened during this time and
some things could have happened
possibly during this other time?
‘‘(The Appellant]: That would be a way to tell them.’’
(R. 1264). The implication of defense counsel’s questioning
was that the records referenced in his questions, if available
to the jury, would exonerate the appellant of at least some of
the charges against him and would cause doubts as to many
of the remaining charges. On cross-examination, the prose-
cutor asked the appellant if he or anybody else had brought
his employment records with him to trial and defense coun-
sel objected.
‘****A party who has brought out evidence on a certain
subject has no valid complaint as to the trial court’s
action in allowing his opponent or adversary to intro-
duce evidence on the same subject.’’’ Hubbard v.
State, 471 So.2d 497, 499 (Ala.Cr.App. 1984) (quoting
Brown v. State, 392 So.2d 1248, 1260 (Ala.Cr.App.
1980), cert. denied, 392 So.2d 1266 (Ala. 1981). See
Dulaney v. Burns, 218 Ala. 493, 496, 119 So. 21
(1928), overruled on other grounds, Whitten v. Allstate
Ins. Co., 447 So.2d 655, 659 (Ala. 1984). “Whenever
defense counsel injects an issue into a case during
cross-examination, the State may, within the discretion
of the trial judge, question the witness as to that
matter.’ Austin v. State, 434 So.2d 289, 292
17a
(Ala.Cr.App. 1983). See also Garrett v. State, 580
So.2d 58, 60 (Ala.Cr.App. 1991)... .”’
Sistrunk v. State, 596 So. 2d 644, 647 (Ala.Cr.App. 1992).
‘*[T]his court determined, in Twilley v. State, 472 So. 2d
1130 (Ala. Crim. App. 1985), that ‘[t}he defense, by
initially putting this matter into evidence, opened the door
for the State to rebut such evidence if it could.’ Twilley, at
1138. Long v. State, 621 So.2d 383, 388 (Ala.Cr.App.
1993).
By implying that his employment records would have
disproved many of the State’s charges against him, the
appellant opened the door for the State to cross-examine him
concerning these records. Sistrunk v. State, supra; Long v.
State, supra.
VI.
Finally, the appellant appears to argue that the trial court
erred to reversal by including in each of the written verdict
forms a summary of the allegations that comprised that
count. He argues that including this information on the
verdict forms constituted a comment by the trial court on the
evidence and was reversible error. We disagree.
At the conclusion of the trial court’s oral charge, the court
stated the following to the jury:
‘‘Now, to aid you in the proper wording of a verdict
in this case, I have prepared forms for your verdict.
Each page is a separate verdict. You must return a
verdict as to each one of those counts. I’ll read the
verdict forms to you.
‘*This is the verdict form as to count one, and I have
it titled A.M., and you will know who it is when you
Start considering that verdict form.
‘And I have some information on there for you, this
is not to be considered by you as evidence, the informa-
18a
tion on the verdict form, it’s simply to clarify and help
you understand which count you are considering.
Remember, the evidence is what you heard in the court-
room.
**This is just an aid, to help you what you are consid-
ering at any particular time (sic).
‘‘Here’s the information concerning count one. This
is the first occasion of alleged sexual abuse when A.M.
was five years old and when it was alleged that the
defendant rubbed his penis between her legs.
‘**Now, as to these allegations of count one, if you
find that the defendant is guilty of that charge, your
verdict would be, We the jury find the defendant guilty
of sexual abuse in the first degree.
“If you find that the defendant is not guilty of that
charge, then as to the allegations in count one, We the
jury find the defendant not guilty. And that’s what you
do when you get to count one.’”’
(R. 1379-80) (Emphases supplied). The trial court proceeded
in this manner throughout the remaining fourteen counts of
the three indictments. Where language describing the
defendant’s conduct appears in a given count, it was always
preceded by the word ‘‘alleged.”’
As the judge read to the jury Count III of the first indict-
ment, which involved the appellant’s rape by forcible
compulsion of A.M., and the numerous lesser included
offenses, he reiterated the following:
‘“‘There are five more of those and I’m not going to
read them. They are all the same. I'll just read you the
factual information.
‘‘T’ll just read you the [factual] information at the top.
I’m calling it information, because I want to show you
19a
what you are considering. I’m not saying it’s fects in
the case.
(R. 1383) (Emphasis supplied). Thereafter, while summariz-
ing the allegations of the cases involving C.R.M.., the trial
court stated as follows:
*‘Again, its your determination as to whether those
are facts or not in the case. That’s just information to
help you sort it out.”’
(R. 1385-86) (Emphasis supplied).
The appellant cited no authority to support his argument
that the inclusion of the explanatory information within the
verdict forms constitutes a comment by the court on the
evidence. Neither were we able to locate any such authority.
Nor have we have found any case law or other authority that
States what may or may not be included in verdict forms.
However, we do find helpful our court’s recent decision in
Williams v. State, [Ms. CR-92-0382, August 23, 1996] ee
So.2d___ (Ala.Cr.App. 1996):
“Rule 21, Ala.R.Cr.P., gives the trial court discre-
tion to send indictments to the jury room in a complex
case. Eddins v. State, 501 So. 2d 574 (Ala.Cr.App.
1986); Thompson v. State, 473 So. 2d 1205
(Ala.Cr.App. 1985). This was a complex case, involv-
ing four indictments. There were two charges of capital
murder and two of attempted murder, and numerous
lesser included offenses were involved.”’
Williams v. State, supra.
This was a complex case which involved three victims,
three indictments, and fifteen counts. The time periods
involved in the various counts overlapped greatly. The
appellant filed, and the trial court granted, a Motion for a
More Definite Statement. When the State filed its More
20a
Definite Statement, the Defendant filed a second Motion for
a More Definite Statement, demanding still more
information. The trial court included the additional facts in
each verdict form so the jury would understand each of the
fifteen counts on which it was voting. The trial court
repeatedly stated to the jury that the summaries included
within each verdict form were not evidence and stated when
it began its explanation of the verdict forms that
‘*Remember, the evidence is what you heard in the court-
room.’’ (R. 1380).
In a case this complex, we cannot find error in the trial
court’s inclusion on each verdict form sufficient allegations
to give the jurors some information of what they were voting
on. This is especially true where, as here, the trial court
exercised such diligence in insuring that the jury would not
mistake its summaries for evidence. We believe including a
summary of the allegations contained in each count is vastly
superior to allowing the jury to take the indictment and/or
More Definite Statement with it when it began its delibera-
tions, as we permitted in Williams v. State, supra.
Vil.
The appellant also alleges that the trial court erred by
failing to cover the lesser included offenses as to Counts IV
through VII involving the victim, A.M. However, the
appellant’s second argument is raised for the first time on
appeal, and is therefore not preserved for appellate review.
Kennard v. State, 531 So.2d 938, 940 (Ala.Cr.App. 1988);
Bolding v. State, 428 So.2d 187, 191 (Ala.Cr.App. 1983).
For the foregoing reasons, the judgment of the trial court
is affirmed.
Affirmed by memorandum.
All judges concur.
2la
APPENDIX C
IN THE CIRCUIT COURT OF BALDWIN COUNTY
CASE: CC 96 001198.00
JUDGE: JHR
STATE OF ALABAMA
VS
: MERRILL ROBERT LYNN
| BALDWIN CO CORR CTR
| P O BOX 1329
BAY MINETTE, AL 36507 0000
DOB: 07/02/59 RACE: W SEX:M HT:511 WT: 195 HR: EYE:
SSN: 421922688 ALIAS NAMES:
CHARGE1:SEXUAL ABUSE 1ST CODE1: SXAI LIT:SEXUAL
ABUSE 1S TYPE:F
CHARGE2:RAPE IST DEGREE CODE2: RAPI_ TYPE:F
CHARGE3:RAPE IST DEGREE CODE3: RAP! TYPE:F
MORE?: Y OFFENSE DATE: 01/31/93 AGENCY/OFFICER: COOK
DATE WAR/CAP ISS: DATE ARRESTED: 06/21/96
DATE INDICTED: 07/29/96 DATE FILED: 08/12/96
; DATE RELEASED: DATE HEARING:
. BOND AMOUNT: $325,000.00 SURETIES:
: DATE1: DESC: TIME: 0000
DATE2: 09/27/96 DESC: ARRG _‘ TIME: 0900 A
DEF/ATY: RAINES, KENNETH R TYPE:R ‘TYPE:
PROSECUTOR: WHETSTONE, JOHN D
Consolidated Cases: CC-96-1198, 1199 & 1257
; OTH CSE: DC962440 CHK/TICKET NO: 96201234 GRAND JURY: 07-150
i COURT REPORTER SID NO: 000000000
DEF STATUS: JAIL DEMAND: Y
4 CASE ACTION SUMMARY
: CIRCUIT CRIMINAL
22a
DATE ACTION, JUDGMENTS, CASE NOTES
COUNT IV THRU VII — RAP1 — RAPE 1ST DEGREE
9-19-96—Motion To Transfer
9-19-96—Plea of Not Guilty and Waiver of Arraignment
9-20-96—Order To Transfer—Copy to D.A. & K. Raines &
Judge Reid
9-20-96—Scheduling Order—Copy to D.A. & K. Raines
10-8-96—Motion To Reduce Bond
10-9-96—Motion To Preserve Evidence & Request For
Production
10-8-96—Motion To Limit Interview of Witnesses
10-8-96—Motion For Discovery & Production of All Psy-
chiatric And/or Counseling Records And/Or
Information of Listed Victims In Indictments
10-8-96—Motion For Discovery & Production of DHR
Investigative Report & Request For Any And All
Exculpatory Information Related Thereto
10-8-96—Motion For More Definite Statement
10-8-96—Objection To Consolidation & Request For Oral
Argument
10-8-96—Motion To Determine Pre Trial Admissibility of
Evidence
12-16-96—Motion To Suppress
12-16-96—Motion For More Definite Statement
10-18-96—State’s Response To Deft’s Motion To Reduce
Bond
10-18-96—State’s Response To Defts Motion To Limit
Interview
10-1 $-S9:—Motion To Consolidate
ie oe Pees POR A PO Pe ee
ey
23a
10-18-96—State’s Response To Deft’s Motion For Discov-
ery & Production of DHR Report, etc.
10-18-96—State’s Response To Deft’s Motion To Determine
Pre-Trial Admissibility of Evidence
10-21-96—State’s Response To Deft’s Motion For Discov-
ery & Production of DHR Report
10-24-96—Order To Consolidate - (CC-96-1198, 96-1199 &
96-1257) Copy to D.A. & K. Raines
11-15-96—State’s Response to Defendant’s Motion for More
Definite Statement
11-15-96—State’s Response to Defendant’s Motion for
Discovery and Production of All Psychiatric
and/or Counseling Records and/or Information of
Listed Victims in Indictments
11-15-96—State’s Response to Defendant’s Motion for More
Definite Statement
11-19-96—Motion For Depositions Pursuant To A.R.C.P.
16.6
11-26-96—State’s More Definite Statement
11-15-96—State’s Response to Defendant’s Motion to Pre-
serve Evidence and Request for Production of
Materials
1-6-97—Order (see file copy) Copy to DA, Atty, DHR 1-7-
97
1-14-97—Motion for Continuance
1/31/97—The Jury having been struck on 1/27/97, this case
was tried and submitted to the Jury on 1/31/97 and
the following verdicts were returned: As to Count
I: ‘‘We, the Jury, find the Defendant guilty of
: Sexual Abuse in the First Degree.’’ As to Counts
24a
II, M1, IV, V, VI, VII: ‘“We, the Jury, find the
Defendant guilty of Rape in the First Degree as
charged in the Indictment. Anne Barber, Foreper-
son.”’ whereupon the Court adjudged the Defend-
ant guilty in each count and orders a presentence
investigation with a report to be filed with this
Court on or before 2/18/97. Sentencing is set
2/20/97 at 9:00 a.m. in Courtroom 1, Baldwin
County Courthouse, Bay Minette, Al.
/s/ James H. Reid, Judge.
2-6-97—Copy to State Parole
2-20-97—Comes now the defendant and counsel and counsel
for the State of Alabama before the Court for the
defendant’s sentencing on his conviction of all
counts of this case, and the Court enters the at-
tached sentencing orders. The defendant entered
an oral notice of appeal. Counsel for the defend-
ant’s appeal is retained.
/s/ James H. Reid, Judge
3/6/97—Notice of Appeal to Court of Criminal Appeals,
Att. General, DA, Ken Raines & Lou Ann Schell.
3-7-97—Commitment Mailed
3-10-97—Reporters Transcript Order
3-21-97—Docketing Statement
25a
APPENDIX D
EXCERPTS FROM PROCEEDINGS
« * . * * * . * *
[R-177] told that he would be there in a little bit. So, we
waited down the road for him to come home.
What happened when he arrived?
I went to his house and I placed him under arrest.
Did he make any statements at that point to you?
No, sir.
Did you read him his Miranda rights?
Verbal statement, right.
You did read them off a card or from memory?
Memory.
What did you tell him?
He had the right to remain silent.
He had the right to have an attorney present before any
questions were asked of him.
That he had the right to have an attorney present.
[R-178] And that he didn’t have to make a statement.
Q_ Did he make a statement?
No.
‘
~
Fen SCALE Ra NaN A i rg ae fe aa te a oe ah ae a oe a i
> HO FH F&F HD F&O PY
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A
Q_ Did he ask for an attorney at that time?
A_ No, sir.
Q Was this before or after you placed him in the police
r?
A This was before he was placed in the car.
26a
Q Where did you go after you transported him?
A A marked unit transported him to the Robertsdale
Police Department.
Q_ Did he make any statements at that time?
A During transport? He was transported by another
officer. So, none that I know of.
Q Tell us again where you interviewed the Defendant.
A In Chief Bob Williams’ [R-179] office, located at the
Robertsdale Police Department.
Q And who was present during the interview?
A Myself, Mr. Merrill and Deputy Cook.
Q And what was his, the Defendant’s physical aapear-
ance during the interview?
A Slightly embarrassed, couldn’t make eye contact,
teary eyed.
Q When you read him his rights, upon arrest, did he
appear to understand those rights?
A Yes, he did.
Q What was, whenever you heard him talk, was his
speech coherent?
A Yes.
Q During the interview in Robertsdale, what did he say?
MR. RAINES: And I’m going to object, and during the
interrogation what happened.
MR. BECK: Let me clear it [R-180] up. I’ll withdraw the
question.
MR. RAINES: Okay.
nee AOS ee
27a
BY MR. BECK:
Q Now, was Mr. Merrill Mirandized again?
A_ Yes, he was.
Q How was that explained?
A Deputy Cook, after arriving in the office, Deputy
Cook took a Miranda form, standard form, from the Sher-
iff’s Department, and he read from the form.
Q What’s contained on that form?
The Miranda rights and the waiver.
What is that?
That’s the form that was read to Mr. Merrill.
What does the form say?
The form says the statement of Miranda rights:
One. You have the right to a remain silent.
[R-181] Two. Anything you say can and will be used
against you in a court of law.
> OP AO YP
Three. You have the right to talk to lawyer and have him
present with you while you are being questioned.
Four. If you cannot afford to hire a lawyer, one will be
appointed to represent you before any questioning, if you
wish.
Five. If you decide at any time to exercise these rights
and not answer any questions or make any statements, you
can decide at any time to exercise those rights.
Q_ Were those rights read to Mr. Merrill individually?
A_ Yes.
Q One after another?
A Yes.
28a
Q_ There a place for Mr. Merrill to sign that form?
A Mr. Merrill initialled each
* * * * * * cad * *
[R-187] Q Involving Alana Merrill and one count of sex
abuse in the first degree involving Crystal Merrill and one
count of sex abuse involving Faline Merrill?
A Right.
Q And Faline, by virtue of her age, and the other two by
virtue of forcible compulsion, is that right?
A Yes, sir.
Q And after the Defendant read those complaints, his
Statement was, yes, that happened.
MR. RAINES: And I object to that. There’s no testimony
even that the Defendant was asked anything. He was just
read his rights.
THE COURT: Well, you are being repetitious, John. You
have already covered this.
MR. BECK: All right. I pass the witness.
CROSS-EXAMINATION
BY MR. RAINES:
{[R-188] Q John, did you make any statements, o* Mr.
Merrill, that you didn’t tell us about?
A Yes, I did.
Q Can you tell me at what point in the conversation you
made those statements?
A Well, it was after the reading of the Miranda form to
him.
29a
Q_ I want to try and back up, take it as it occurred. He’s
at the Robertsdale Police Department. You read him the
Miranda form?
A (Nods head affirmatively).
Is that right?
Deputy Cook reads the Miranda form.
You are sitting there watching?
Right.
Q Once he finishes reading, Deputy Cook finishes
reading the Miranda form, what’s the first thing said by
either one of —
[R-189] A After finishing the Miranda form, Mr. Merrill
made the statement—Actually there was two statemems. You
know, there was two readings. And the first reading of it,
Mr. Merrill made the statement, I do not want to talk about
it right now.
Q Once he said he didn’t want to talk about it, what did
you do?
A I just talked to him. I asked him.
Q Well, let me ask you. He made the statement, I don’t
want to talk about it now. What is the next thing said by you
or Deputy Cook? Or do you know?
A It was made by me.
> O > 0
Q And what did you say after he said, I do not want to
talk about it right now?
A What did I say after that?
Q Yes, sir.
30a
A_ I asked him if it was something that was too embar-
rassing. I [R-190] believe I asked him if he in fact was
invoking his rights or wanted an attorney.
Q Do you know if you asked him that?
A About the attorney?
Q Yes.
A_ I know at one point I did. As to whether or not it was
right then, I don’t know. But I know I asked him, was he
embarrassed. His head was down and he wouldn’t make eye
contact. And I asked him was it too hard to talk about. Too
embarrassed to taik about. it. And in fact, at that point, I
asked him, was he invoking his rights?
@ Do you know at that point in time, if you asked him
that question or if it was later on in the conversation?
A I don’t know if it was that point in time or not.
Q. Okay.
A But during our conversations I did ask him that.
{[R-191] Q At some point later on in the discussion, you
know that you made that statement?
A Right, because he didn’t answer me, you know, right
back.
Q And it’s a fair statement to say then that when y’all
asked him to give a statement, he says he doesn’t want to
talk about it, and then you initiated a conversation from that
point forward?
A Be said he did not wish to talk about it right now.
Q And then you continued to initiate the conversation at
that point by asking him if he was too embarrassed?
A Yes.
3la
Q Now, I believe you mentioned there was another point
in time where you asked him if he wanted to talk about it.
And does he then say again, do you want to talk about it?
A He was read his rights and [R-192] he started talking
about it. He started talking about some of the stuff that was
going on. Deputy Cook said, you know, don’t say anything,
I’ve got to reread you the rights. And he read them to him
again. That’s when he signed the waiver.
Q Would you agree with me that there was another point
in time, I believe, you made a statement, he was silent,
didn’t give you an answer, and you asked him another ques-
tion?
A That’s correct.
Q Explain what happened in that particular conversation.
A This was when I had talked to him about it being
embarrassing and stuff. And I just told him in a general
conversation, I knew it was embarrassing, I could
understand that. And it was something that would be hard to
talk about.
Q Are you saying after you said that, that he stayed
silent after [R-193] you made that particular statement to
him?
A Well, he was silent. He never spoke. I was speaking
to him.
Q Okay. Once you made that statement, Deputy Stewart,
and then you testified that he stayed silent, what’s the next
thing that’s said?
A I discussed with him the case in general.
Q What did you say?
A Exact words, what I said?
Q Well, you know?
—
32a
A Talked about the charges that had been made.
Q What did you say about the charges that had been
made?
A That the allegations had come from the children and
that the children —
Q Did you just say these allegations have come from the
children?
A Yeah, because that’s where [R-194] the allegations
had come from, from the children. It was not allegations
that I or Deputy Cook had brought or made.
Q What else did you say?
A I talked to him about the problems that the children
who made these allegations and stuff had, you know, the
things that they lived with.
Q_ What type of problems?
A The problems that they deal with in making these
allegations. These allegations normally don’t come lightly,
and it’s not easy for a child to say these things if it’s not the
truth, because it’s hard on them.
Q Would you agree with me at that point in time,
Deputy Stewart, you are telling him these children usually
don’t make up these things, in an effort to get him to talk to
you?
A No.
Q Did you say—
A_ Restate your. Give me your question again.
{[R-195] Q Would you agree with me Deputy Stewart, the
reason you tell him children usually don’t make these things
up, it’s hard on them, is that you are saying those things in
an effort to get Mr. Merrill to respond to you?
33a
A Mr. Merrill’s not responding to me. I’m just
explaining the case to him, in general, what we’re dealing
with, what the children are dealing with and what he’s
dealing with.
Q_ What else did you say?
A I explained that. And I explained to him, you know
that, about the difficulty and just the mere fact of being
accused makes it difficult. I talked with him about, if there
was a problem and he wanted to talk about it, that’s what we
were there for.
Q What did you say about that, specifically, other than
what you just said?
A About what, the problem.
[R-196] Q Well, that’s what we’re there for.
A That’s all I said. I might have —
Q Are you saying — well, go ahead.
A I might have told him, you know, if you have got a
monkey on your back that you are dealing with.
Q That you need to share it and get it off your back?
A_ No, I did not, Mr. Raines. That’s not what I told him.
I told him if there was a monkey on his back, he needed.
Q To what?
A He needed to think about that in relationship to the
children, what the children were going through, what he was
going through. I never offered him any inducement for any
remarks. He was not making remarks. I was the only one
making statements there.
[R-197] Q How long would you say that you continued to
make statements to him?
A Three, four minutes, maybe.
34a
Q What else was said during this period of silence?
A From-whom?
Q From you, I’m sorry.
A From me. Okay. Basically just that. Going over the
children’s feelings and where the allegations originated
from.
Q And did you ever explain to Mr. Merrill that it would
be better for him to make a statement in order to help his
children?
A I did not.
Q_ And did you ever try and encourage that, that it would
be better for him to make a statement?
A No, I did not.
Q After you finished making the statements during this
period of silence, is there anything that you [R-198] said we
haven’t covered during this particular time-frame?
A_ Not that I remember.
Q What happens next?
A He makes a few comments.
Q What does he say?
A He refers to one of the girls. And then Deputy Cook
interrupted him and tells him, you know, if he’s going to
say something, that he needs to reread him his rights.
Q_ And was it at that point in time that he was reread his
rights?
A That’s correct. And that was at the point of time when
he initialled each individual rights and signed the waiver.
Q Two separate Miranda forms?
A_ No, it was the same form.
a eS PSE a ae a a eee
35a
Q Once you read those rights and he signed the waiver?
A Yeah.
Q_ What was the first thing said after that?
[R-199] A That’s when Deputy Cook started sharing the
complaint forms with him.
Q What did Deputy Cook do exactly?
A He took the complaint forms and handed them to Mr.
Merrill, and Mr. Merrill read them. And if there was any
question, and there was on a couple that there was a ques-
tion, he would ask Deputy Cook.
And Deputy Cook would answer the questions concerning
the Miranda form.
Q Did Deputy Cook, before he handed Mr. Merrill the
complaint, did he make any statements about the complaint
or did he just hand it to him?
A He told him, these were the individual complaints that
he was being charged with.
Q What else did he say?
A I discussed the charge. He [R-200] discussed the
actual warrant part of it, the complaint being one sheet and
then there was a warrant sheet with it.
Q Anything else?
That Deputy Cook said to him?
Yes, sir.
No, sir, after he would do one, he would do the other.
Once he did one, would he give that to Mr. Merrill?
Yes.
> O > 0 >
36a
Q And did he ask Mr. Merrill any questions once Mr.
Merrill received the sheet?
A Not that I remember. Mr. Merrill responded back to
him.
Q What specifically, to the best of your knowledge, did
Mr. Merrill say about the warrant sheet?
A The complaint sheet, the complaint form, the com-
plaint form, that’s right, I don’t know about the time.
cad i ih lt SN 5 Li inl lel Sy li a Sad a fo ined Me ee Ld a TE ET BE GV A EAS RT A ee REST TRAC ee COM ORE TE Te ees
OMAR ESET SAT ASG OLS SPL SCG IOE TRI SIE LSID GME BES LLATY 4 MSAD CIE ,
37a
[R-201]
THE CIRCUIT COURT OF THE TWENTY-EIGHTH
JUDICIAL CIRCUIT OF ALABAMA
- BALDWIN COUNTY -
CC-96-1198, 1199, 1257
STATE OF ALABAMA,
Plaintiff,
VS.
ROBERT L. MERRILL,
Defendant.
VOLUME II of VII
Pages: 201 - 400
LOU ANN ROSSI SCHELL
OFFICIAL COURT REPORTER
[R-202] Q Generally speaking, for the purpose of brevity,
did he make any statement with respect—
A_ To the complaint forms?
Q Yes.
A Yes, he made the statement to all of the complaint
forms.
Q What specifically was said all the other times, other
than what you said?
A That’s about all he said about the time.
38a
~ MR. RAINES: I think that’s all I have.
THE COURT: John, do you have any additional wit-
nesses?
MR. BECK: If I could have just a second, Judge.
BY MR. RAINES:
Q One question. Who took him from the house to Rob-
ertsdale P.D.?
A_ I believe Deputy Robinson.
Q Do you know if they had any conversation in the
vehicle?
[R-203] A No, because Deputy Robinson wasn’t even
familiar with it. We just called him out of the territory to
transport.
Q Do you know if they had had any conversation in the
vehicle?
A I don’t know for a fact that they did. If there was,
Deputy Robinson never relayed any information to us con-
cerning that.
Q It’s possible, though, there was a conversation in the
vehicle that you are not aware about, is that correct?
A There could have been.
MR. RAINES: Thank you.
THE COURT: You may step down.
MICHAEL COOK,
the witness, was sworn in to tell the truth, the whole
truth, and nothing but the truth, was examined and testified
as follows:
39a
DIRECT EXAMINATION
[R-204] BY MR. BECK:
State your name, please.
Mike Cook.
How are you employed?
Baldwin County Sheriff’s Department.
Is that the Miranda form that was used in this?
Yes, it is.
In this interview?
Yes, it is.
Is that the Miranda form that you read Mr. Merrill his
9
It is.
And Mr. Merrill initialled each one of those rights?
Yes, he did.
Did he initial them after you read each individual
That’s correct.
Is that your name signed on the bottom of it?
It is.
Did Mr. Merrill sign that in [R-205] your presence?
Yes, he did.
MR. BECK: We move to admit the statement of Miranda
rights?
= 5
>O>O>RO>O> EO >O>O>O>O
40a
MR. RAINES: Is this the first or the second? I know it’s
one form. I didn’t know if you were introducing it for the
purposes of first or second Miranda.
BY MR. BECK:
Q Did you read it to him one time and then have him
Sign it a second time after you reread it to him?
A (Nods head affirmatively).
Q_ And then had him sign it?
A Actually, it’s the third Miranda, because there was
one verbal, also. But one form was used, the first time. I
read it to him. He made that statement. The second time is
when he signed off on the waiver part of the bottom of it.
Q That’s this one right here?
A That’s correct.
[R-206] Q _ And in all, to your knowledge — .
MR. BECK: We move to admit.
MR. RAINES: We object to that, Judge.
Did you testify the first time that you didn’t sign the
waiver portion of the Miranda form?
THE WITNESS: No. From the waiver part of the bottom,
where he initialled the five, there’s five numbers there.
That’s the initial part, and then the signature is at the bot-
tom.
MR. RAINES: Did he sign the buttom part the first time?
THE WITNESS: Ken, I’m not sure, I don’t know if he
did or not.
MR. RAINES: And we object to that. There’s no waiver
that’s been proven.
Sa cn i
4la
THE COURT: Overrule the objection and order it ad-
mitted.
(Admitted into evidence, [R-207] State’s Exhibit
Number One).
BY MR. BECK:
Q To your knowledge, Mr. Merrill was read his Mi-
randa rights on all three occasions?
A Right.
Q At least twice in your presence?
A All three times.
Q_ All three times in your presence?
A Right, that’s correct.
~
And did you or anybody in your presence make any
threats, promises, or try to coerce Mr. Merrill during any of
his statements?
A No, sir.
Q_ And did you threaten him?
A No, sir.
Q Anybody in your presence threaten him?
A No.
Q You or anybody in your [R-208] presence tell him it
would be better for him to make a confession or make a
statement?
A No.
Q Did anybody, you or anybody your presence, tell him
it wouldn’t be worse for him if he didn’t make a confession?
A No, sir.
42a
Q And in your opinion, was his statement freely and
voluntarily given?
A Yes, sir.
Q You heard Deputy Stewart testify?
A Yes, I did.
Q And the statements that Mr. Merrill made, was that an
accurate account of what Mr. Merrill said?
A Yes, it was.
Q_ And that was in your presence as well?
A_ It was.
MR. BECK. Okay. Pass the witness.
[R-209]
CROSS-EXAMINATION
BY MR. RAINES:
Q Deputy Cook, you heard Deputy Stewart testify.
Would you agree with his testimony exactly what was said,
when it was said and the conversations at the Robertsdale
Police Department?
A Yes, sir.
Q Would you agree that the first statement, after you
read him his rights, Robert Merrill says, I don’t want to talk
about this right now?
A After the Miranda?
Q Yes, sir.
A Yes, sir.
Q Would you agree at that point in time that Sergeant
Stewart talked with him?
A_ Yes, sir.
PURE PA Mee eae Tae oe Oe ae” eS ee ee || a
aoe gS Medea) ot 4 ,
43a
Q You heard Sergeant Stewart testify he was the only
one that said anything during this period of time, would you
agree with that? ;
[R-210] A John was doing pretty much all of the talking.
If I said anything, it was very short, just interjected some-
thing there.
Q Do you remember, if anything, what you said?
A_ No, sir. Like I said, John was doing most of the talk-
ing. If I interjected anything, it was small.
Q Do you remember making a statement after he said, I
don’t want to talk about this right now, do you remember
testifying previously that, we, being you— Sergeant Stewart
and yourself, that he had to sign the waiver form if he was
going to talk to you? Or testifying to that effect?
A_ Yes, sir, I said that.
Q Do you remember testifying that Mr. Merrill refused
to talk specifically about any of these acts with you?
A Yes, sir, I remember him saying that.
[R-211] Q Do you remember questioning him specifically
about the specifics of the acts?
A I remember him not specifically talking with us about
it. I do think I would try to get specific with him, and I
don’t believe we would talk specific about it.
Q With respect to the conversation, when was it that you
tried to get specific with him and he refused to talk with
you?
A_ It would have been after the conversation with John.
Q Which one?
44a
A After getting there, specifically, it would have been
after the Miianda form, his signing of the waiver of the
Miranda form.
Q Either the first or the second time between when he
signed it?
A Yes, sir, but which one, I’m not sure.
Q Would you agree with me, [R-212] based on your
testimony so far and Sergeant Stewart’s testimony so far,
that we have at least four times pinned down where my
client had said he doesn’t want to talk to you, he has refused
to answer your questions?
A_ No, sir. I believe he made that statement one time.
Q What about the time referencing Sergeant Stewart,
where he asked him the questions and Mr. Merrill didn’t
answer, stayed silent?
A Well, he never said he wanted, he just said, I don’t
want to talk about this right now.
Q But there were times that he asked questions and he
stayed silent, as Deputy Stewart just stated?
A That’s correct.
Q_ And then there’s a time that you questioned him about
specific acts, and he would not get specific with us on any of
the acts, 1s that correct?
A_ Yes, sir, that’s correct.
* * * * * * * * *
45a
[R-217] that. He said it. The deputy said it. Deputy John
Stewart said it. They then initiated further contact. Any my
client again refused to speak.
They then again initiated further contact, telling him how
it would be on his children, his family, et cetera. My client
Stayed silent.
They went again. And we don’t know exactly where the
conversation went from there. But we do know that Deputy
Cook interjects and asked him about the specifics of the
allegation. And my client won’t talk about that. My client
has done number five. That is, he has a right not to answer
any questions. And he says, I don’t want to talk about it. It’s
as Clear as it can be. And the officers agree, as well as my
client.
And we think the whole statement should be suppressed.
And I can submit case law to Your Honor or whatever. But I
think it’s kind of [R-218] clear in this particular case, Judge.
THE COURT: What say the state?
MR. BECK: Judge, first of all, he never asserted his right
to counsel. If anything, he just said that, I didn’t want to
talk about this. Not necessarily specifically he didn’t want to
ialk. I don’t want to talk about this.
The law of the Supreme Court says it must be totally
unambiguous. I believe what Mr. Raines— the case that
Mr. Raines, I understand that case has been overturned by
the Supreme Court anyway.
MR. RAINES: This is the most recent decision, 1996,
second time it went up. They turned around and reversed
their rulings on two of the co-defendants. But the co-
defendants that I cited has been upheld.
MR. BECK: The law says it must be totally unambiguous.
46a
[R-219] THE COURT: All right. You already said that.
What else?
MR. BECK: He was re-Mirandized. He was Mirandized
three times, and he understood those rights. And he made
any statement that he made or any communication that he
made was after a long period of time, where he initialled
each statement, each portion on the Miranda rights, and
Deputy Cook went through them one by one.
And I don’t think it’s very clear that it was, that this
conversation was initiated by law enforcement to keep Mr.
Merrill talking.
THE COURT: All right. I deny the Motion to Suppress.
All right. That’s all? Okay. Bring the jury in.
(Jury in).
THE COURT: Ladies and Gentlemen, first of all, let me
apologize to you for the delay. We had
* * * * * * * * *
{R-1039] Q All right. I want to hand you what’s been
marked for identification as Defendant’s Exhibit One, and
tell me what that is.
A It’s a Miranda form that was read to Mr. Merrill,
signed by Mr. Merrill, signed by Deputy Cook and myself
on 6-21-96.
Q What’s contained on that form?
A_ A Statement of Miranda rights and waiver of rights.
Q_ What are the rights that are on that form?
A You have the right to remain silent.
Anything you say can and will be used against you in a
court of law.
47a
You have the right to talk to a lawyer and have him
present with you while you are being questioned.
If you cannot afford to hire a lawyer, one will be ap-
pointed to [R-1040] represent you before any questioning, if
you wish.
And you can decide at any time to exercise these rights
and not answer any questions or make any statements.
Q Is there anything else on that form?
A Yes, sir, the waiver of rights.
Q And what does that say?
A I have read the above statement of my rights and I
understand each of those rights. Having these rights in mind,
I waive them and willingly make a statement.
Q Is there a place for uxe defendant or for the defendant
who is about to be questioned to sign that?
A_ Yes, sir.
Q And was that in fact signed by the defendant?
A Yes, sir.
Q How do you know that the
o* * * * * ok x * *
[R-1046] Q time.
Q Okay. First time he was given his Miranda warnings,
was that off the form that you just testified to?
A Yes, sir.
Q What, if any statement, did the defendant make after
he was given the Miranda warnings that time.
48a
MR. RAINES: And I object, unless he testifies that the
first time was when the defendant signed the waiver on the
bottom of the form and waived his rights.
THE COURT: Well, if you know. -
THE WITNESS: What now?
MR. RAINES: Deputy Stewart, can you tell me, in your
opinion, did the defendant sign the waiver portion at the
bottom of the Miranda form and waive his rights the first
time you advised him of his rights.
THE WITNESS: Well, I didn’t [R-1047] advise him of it,
but he signed it on the second reading.
MR. RAINES: All right, then. So, the first time he never
made a waiver? He never signed the waiver?
THE WITNESS: That’s correct. But neither did he make
a statement.
MR. RAINES: And I object to anything—
BY MR. BECK:
Q Was he read the waiver the first time?
A Yes, sir, he was.
Q And did, in your opinion, he appear to understand
what was contained on the waiver:
A Yes, sir.
Q What was said?
MR. RAINES: And I object, unless it’s the first or second
time. Specify which one.
THE COURT: All right. Y’all come up here.
* * * * * * * * *
49a
(R-1068} my objection, and that’s because of proper predi-
cate.
THE COURT: He did try to go into it and you objected
to it.
MR. RAINES: And the last time I came up, I with-
drew it.
THE COURT: All right. We’ll do it this way. Since he’s
got him on cross, he can take him on cross and you can go
back into it on direct.
MR. RAINES: I won’t object to that.
BY MR. RAINES:
Q Didn’t he say that? When you asked him that the first
time, didn’t he tell you that?
A Tell me what you are saying that he said to me?
That he didn’t want to talk to you.
That was not his exact words.
What were his exact words?
A His exact words: I do not [R-1069] want to talk about
it right now.
Q You are a hundred percent positive that’s what he
said?
A Yes, sir.
Q Do you also remember, once he made that statement,
making the next statement to him? Once he made that state-
ment, I do not want to talk about this right now, do you
remember making another statement to him?
A I made several statements after he said that. I talked to
him for a bit.
Q You talked to him for a bit?
O }- #0
50a
A But I did not ask him any questions.
Q Right. You were telling him that he needed to do
things, based upon his family or his wife or other peopie, is
that correct?
A No, sir, I did not.
Q Did you ever tell him that he needed to say something
so that you could call and tell his family that
* * * * * * * * *
[R-1125] Q Well, during the intervening time, what was
going on?
A (Shakes head negatively).
Q When he said, I don’t want to talk about that right
now, until— from that point there until he acknowledged
what he had done —
A Sergeant Stewart was talking to him.
Q Was he questioning him?
A He was talking to him.
Q Was he applying any coerceive tactics, in your
opinion?
A No, sir.
Q And while Sergeant Stewart was talking to him, what
happened? What’s the next thing that Mr. Merrill did?
A Mr. Merrill made a statement, what that statement
was, I don’t know. I stopped him and I said, Mr. Merrill
we've got to go over this again, sign your waiver. We went
over the rights again and he signed the
* oe a * * * * * *
Sla
[R-1127] spoke to him, I told him the victim, what the
charge was and I handed it to him. And Mr. Merrill read it.
How do you know he read it?
A I sat there and watched him read it.
Q Okay.
A And he said, yes, that happened.
Q
A
©
And did he say anything about the dates?
After each one he says, I’m not sure about the dates,
but if that’s the dates they said it happened, that’s when it
happened.
Q Did he say anything else after he read over the war-
rants and complaints?
A Like Sergeant Stewart said, he became teary eyed and
asked us to take him outside of the police department and
shoot him.
MR. BECK: I pass the witness.
* * * * * * * * *
[R-1274; that time, you were taken to the police station, is
that correct?
A Yes, sir.
Q And I believe you were taken by another deputy, do
you remember his name, not these folks, but somebody else?
A Right. I didn’t know the man.
Q Once you got to the police station, there was
testimony that the officers had to read you your rights three
times. First time they read your rights, you didn’t Say any-
thing, did you?
A (Shakes head negatively).
S2a
Q Second time you didn’t want to say anything, did you?
A_ No, sir.
MR. BECK: Object to the leading.
THE COURT: Overruled.
BY MR. RAINES:
Q After they kept on for [R-1275] awhile, did you
finally say something?
A Yes, sir, I told them that I didn’t want to talk to
anybody, period. I just wanted them to leave me alone.
Q Was this statement that these officers have testified to
when you were at Robertsdale, did they get a tape recorder
and tape record any piece of any conversation you had with
them?
A_ No, sir.
Q. Any, any piece?
A_ Not to my knowledge.
Q Did they get a video camera and videotape any piece
of any alleged conversation between you and them?
A Not to my knowledge, no, sir.
Q_ Did the officers say anything to you about letting you
go or letting you see your children or taking— letting you go
take care of your family if you talked to them?
A Well, they kept trying to talk, and I kept telling them
that I [R-1276] didn’t want to talk, period. Just leave me
alone. And they kept on and on. And one of them, said, Do
you know why you are arrested?
And I said, No, sir, I don’t have any idea why I am
arrested.
53a
And he said, Well, here. And he stuck these papers in my
hand. And he said, These are the charges against you.
Q There’s been testimony that you read those charges.
And did you read the charges?
A Well, I had all of them at one time and I just kind of
glanced at them. I didn’t really read them thoroughly or
anything. I just looked at them.
Q Well, there was testimony that they handed them to
you individually. Is that correct? Or did you have them all at
one time?
A Not to my knowledge. They just handed me the
papers. Said, These [R-1277] are the charges.
Q Do you know what the statute 13A-11-88, means?
A I don’t have any idea.
MR. BECK: And we object to that, there’s no such thing.
BY MR. RAINES:
Q Well, eight. Pick a number. Any of them. Code
Statute.
A I don’t have any idea.
Q Dash 66-8 rape, sexual abuse or any of those?
A (Shakes head negatively).
Q Can you admit to doing something in violation of
13A-66 dash 1 A-3?
A_ No, sir, I don’t know the definition of that.
Q First time they read you your rights, you understood
them, didn’t you?
A Yes, sir.
Q And—
-_
54a
A That’s why I told them I [R-1278] didn’t want to talk
to anybody. Just leave me alone. Didn’t want to talk,
period.
Q But they wouldn’t stop, would they?
A_ No, sir.
Q_ And they did it again and they wouldn’t stop?
A No, sir, they wouldn’t stop.
Q You're aware that the officers, after this meeting is
over, they don’t go and take any steps to go and try and
gather any other evidence in this case, is that correct?
A That’s correct.
Q Let me ask you. To your knowledge, did any of your
children go testify at grand jury?
A To my knowledge, I didn’t know anything they did.
I was locked up.
Q Do you have, since you have been arrested, have you
tried to contact your children or threatened
* * * * * * * * *
55a
APPENDIX E
SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, DC 20543
WILLIAM K. SUTER AREA COPE 202
CLERK OF THE COURT 479-3011
August 12, 1998
Mr. Bayless E. Biles
201 East 2nd Street
P.O. Box 400
Bay Minette, AL 36507
Re: R. M.
v. Alabama
Application No. A-130
The application for an extension of time within which to
file a petition for a writ of certiorari in the above-entitled
case has been presented to Justice Kennedy, who on August
12, 1998, extended the time to and including September 25,
1998.
This letter has been sent to those designated on the at-
tached notification list.
Sincerely,
WILLIAM K. SUTER, Clerk
By /s/ Jeffrey D. Atkins
Jeffrey D. Atkins
Assistant Clerk
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.