Trott v. State

DeCARLO, Judge

(dissenting).

I cannot join in the reversal of this case. It is my opinion that appellant’s confession was voluntary and in compliance with the standards outlined in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Although the confession in this case occurred six months prior to Miranda supra, the testimony shows that admonishments from that decision were given. The precise wording of the procedural safeguards established in Miranda were not parroted, but other fully effective means were adopted as set forth below:

I. THE RIGHT TO REMAIN SILENT

As shown by Deputy Champion’s testimony in the majority opinion, accused was informed “that he didn’t have to tell us anything,” and “that he didn’t have to give us a statement.” These facts were later confirmed by Chief Turner. The stated warnings informed accused that he did not have to speak and conveyed to him the right to remain silent.

II. ANYTHING HE SAYS CAN BE USED AGAINST HIM IN A COURT OF LAW

According to Champion, Chief Turner warned the appellant “that the statement *49that he give may be used against him, in evidence.” Also, Chief Turner testified that he told appellant, “anything he said might be used against him.” From these remarks, appellant knew anything he said could and would be used against him in court.

III. RIGHT TO THE PRESENCE OF AN ATTORNEY AND IF HE CANNOT AFFORD AN ATTORNEY ONE WILL BE APPOINTED FOR HIM PRIOR TO QUESTIONING, IF HE SO DESIRES

Again referring to the quoted testimony, Champion stated appellant was told “that he had the right to call a Lawyer, if he wanted to — ,” and Turner stated, “that if he wanted a lawyer we’d get him one.” This advice conveyed to accused that even though he was without funds, he was entitled to the presence of an attorney.'

The following excerpt from appellant’s testimony bears out the fact that he was indeed aware of the privilege of having an attorney provided prior to questioning:

“Q. (by solicitor) They did not ask you if you wanted a lawyer ?
“A. No, sir, they did not.
“Q. Mr. Trott, when did you decide you wanted a Lawyer ?
“A. When did I want one?
“Q. Yes?
“A. Well, when — when they put the interrogating on me, I told them I wanted a Lawyer.
“Q. Who did you ask for a lawyer?
“A. I asked both of them.
“Q. Did you say — what did you tell them?
“A. I asked them how about getting me a Lawyer.
“Q. How about getting you a Lawyer?
“A. That’s right.
“Q. Why?
“A. They’re supposed to, ain’t they ?

In addition, it is also evident that all of the above testimony was corroborated by State Investigator Dixon. As shown, when inquiry was made regarding these specific rights, Troth, responded “that he had been advised of all of these things.”

The facts are that the accused was taken into custody on a reckless driving charge and brought to the Sheriff’s office about 6 :00 P.M. He was advised of his Constitutional rights prior to making his statement around 10:30 P.M. Deputy Champion testified that the period of interrogation lasted for an hour or an hour and a half. Nothing appears in the record to indicate the defendant was held incommunicado.

At the conclusion of Turner’s explanation of the rights, appellant was asked if he wanted to make a statement, and he replied, “no, he didn’t want to make one right then.” Later, after appellant had been fed, he asked Turner .to leave — that he wanted to talk to Norris (Champion).

After appellant made his statement, Dixon inquired about the clothing Trott was wearing and could he (Dixon) have them. Trott agreed, if they would get others from his car.

Subsequently, appellant rode to Selma with the officers and directed them to the place where he had thrown the victim’s purse.

In conclusion, I believe that the above facts illustrate an attitude of voluntariness by the appellant.

While I do not contradict the right of an accused to be apprised of his Constitutional rights as per Miranda, I do contend that the exact wording from that opinion is not a prerequisite.

“The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully efj *50fective equivalent, prerequisites to the admissibility of any statement by a defendant.” (emphasis added) Miranda, supra.

In the instant case, it is apparent from the record that effective equivalents were employed to inform appellant of those rights expressed in Miranda.

The interpretation of Miranda in this reversal seems to give the guilty not the same, but vastly more protection than the law-abiding citizen. Something is wrong with our system of justice when it permits a self-confessed killer to return to society with the sanctioned liberty to repeat his crime at will.

Over sixty years ago, Justice Holmes observed in Kepner v. U. S., 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114, and it is even more appropriate today:

. . . . there is more danger that criminals will escape justice than that they will be subjected to tyranny.”