Clark v. State

OPINION

ON MOTION FOR REHEARING

ROBERTS, Judge.

On original submission we reversed the conviction in this case because of error in *699the admission of testimony at the punishment stage of the appellant’s trial. We granted leave to both the appellant and the State to file motions for rehearing. For reasons which follow, we overrule both motions for rehearing, but now affirm the judgment of the trial court.

The appellant’s motion for rehearing alleges that there was error in the guilt-innocence stage of the trial which should have been addressed in the original opinion in this case. Specifically, in four grounds of error, he contends that his confession was inadmissible.

In order to better understand the appellant’s contentions we set out briefly the facts of the case.1 On the evening of March 3, 1978, the appellant abducted a young woman from the parking lot of a shopping center in Austin. He subsequently raped her several times and then stabbed her to death. During this time the appellant and the deceased had been in her car. After the appellant had killed the young woman he attempted to remove all his fingerprints from her car. He also attempted to remove all her blood from his clothing and from the knife he had used to kill her. He then began walking from the location where the murder had taken place to the shopping center where he had originally abducted her in order to return to his truck. As the appellant walked along the frontage road of 1-35 in Austin on his way back to the shopping center, Officer Pena of the Austin Police Department stopped the appellant because he fit the general description of a suspect in a robbery which had occurred about one-half hour earlier. When Pena asked the appellant to approach the police car, the appellant attempted to hide the knife he had used to kill the young woman. He threw the knife into the weeds about ten feet from where he was standing. Pena recovered the knife and noticed that it had stains which appeared to be either rust or blood. These stains would not rub off. When he questioned the appellant, Pena was unable to obtain a satisfactory explanation for the appellant’s presence there, but did satisfy himself that the appellant was not the person sought for the robbery. He then released the appellant.

The young woman’s body was discovered late that evening or early the next morning. The next day, Pena informed the officer in charge of the murder investigation, Lt. Napier, of the circumstances of the stop. Since the stop was made in the general area where the deceased and her car were found, at about the time when the investigation showed the murder had occurred, and since the appellant had attempted to rid himself of a knife and had been evasive about his reasons for being at that location at that time, Napier decided to investigate further.

As it happened, Napier knew the appellant socially. On March 5, Napier and another police officer drove to the appellant’s home. At about 8:00 p. m., Napier asked the appellant to accompany them to the police station for questioning about his March 3 confrontation with Pena. He did not place the appellant under arrest, and, in fact, advised him that he was free to leave at any time. On the way to the police station in Napier’s police car, Napier advised the appellant that he was working on a murder investigation and wanted the appellant to clear up a few things about his presence and actions on March 3. Napier told the appellant that he wanted to check the appellant’s fingerprints, that he wanted the appellant to give him the knife he had tried to dispose of on March 3, that he would like a reasonable explanation of why the appellant was found at that location on that night, and that he wanted the appellant to identify the person he had told Pena he had been with earlier on the night of March 3.

Shortly after their arrival at the Austin police station about 8:30, the appellant provided Napier with a set of his fingerprints. They then began a general discussion of the murder. Again Napier told the appellant that he was free to leave.

*700About 10:00 p. m., a fingerprint examiner informed Napier that the appellant’s fingerprints matched a print taken from the dead woman’s car. Napier then placed the appellant under arrest and gave him a set of warnings. During the course of the next three hours, the appellant confessed to the murder and rape. At about 1:00 a. m., the appellant signed a typed statement. At about 4:30 a. m., he was taken before a magistrate and given the warnings required by V.A.C.C.P., Art. 15.17.

Two hearings were held concerning the admissibility of the appellant’s written statement. The first was held before the trial began; the second was held during the trial, but outside the presence of the jury. Each time the trial judge ruled the statement was admissible.

The appellant contends that this written statement is inadmissible because it was the product of an illegal seizure and detention. He argues that he was seized at his house on less than probable cause. We need not decide whether the police officers had sufficient probable cause to arrest the appellant. The evidence in this record shows that the appellant was not seized until he was formally arrested at the police station after his fingerprints were found to match those found at the murder scene.

The trial court found that the appellant voluntarily accompanied the two police officers to the police station. It further found that Napier informed the appellant that he was free to leave at any time. The appellant was never told that he could not leave until he gave the police officers the information they desired. He was not told that he could not leave until he gave them a fingerprint exemplar. In view of all the circumstances surrounding the incident, we conclude that a reasonable person would have believed that he was free to leave. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (Opinion of Justice Stewart).

The facts of this aspect of the case are virtually identical to those found in Moore v. State, 542 S.W.2d 664 (Tex.Cr. App.1976), and Jones v. State, 522 S.W.2d 470 (Tex.Cr.App.1975). In each of those cases, also capital murder cases, the defendant was asked to accompany police officers to the police station. Each voluntarily agreed to do so. Each consented to be fingerprinted. Finally, after his fingerprints were found to match those taken at the scene of the crime, each defendant was arrested. Although in each of those cases, the defendant was a possible suspect at the time the police officers asked him to go to the police station, in each case the evidence showed that the defendant did so voluntarily. For this reason the confession each defendant subsequently gave was not found to be the product of an illegal detention. We find these cases to be controlling on this aspect of this case. The appellant’s fourth ground of error is overruled.

The appellant argues that the teachings of Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979), require reversal of this case. We do not agree. In Dunaway, the defendant was seized without probable cause as part of a dragnet roundup of suspects. . The Court reversed the conviction because the statements the defendant made were the product of an illegal seizure. In Dunaway it was clear that the defendant was “seized.” Although he was not told that he was under arrest, he was transported to the police station in a patrol car and kept in an interrogation room. He was never told he was free to leave.

In this case, the appellant was told from the outset that he was free to leave. As discussed above, for Fourth Amendment purposes, the appellant was not “seized” until after his fingerprints were found to match those at the crime scene at about 10:00 p. m. Only then was the appellant no longer free to leave the presence of the police officers. For this reason, Dunaway is inapplicable to the present case.

The appellant also contends that his confession was inadmissible because his request for the assistance of counsel was not “scrupulously honored.” Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). We overrule this contention. We *701find that the appellant never made a request for the assistance of counsel.

During the time between the appellant’s arrival at the police station about 8:30 p. m. and his arrest at 10:00 p. m. the appellant and Napier discussed this offense in general terms. During this discussion, the appellant’s right to counsel was also discussed. Napier told the appellant that he had the right to have an attorney, that he could call any attorney he wished to call, and that he would be furnished a telephone book to obtain names of attorneys. Although the appellant indicated that he understood that an attorney might affect his decision as to what he should do, he made no attempt to contact an attorney, nor did he in any way attempt to end the conversation until an attorney could advise him.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court stated,

“If [a defendant] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.”

384 U.S. at 444-445, 86 S.Ct. at 1612. We realize that in Miranda, the Court held that these rights attach during questioning initiated by law enforcement officers “after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id. at 444, 86 S.Ct. at 1612. As set out above, the appellant was not in custody until after 10:00 p. m. However, even if we were to assume that the appellant’s rights under Miranda had arisen, we find that he never indicated in any manner or in any way that he wished to consult an attorney or that he wished to end the conversation. For this reason, we overrule the appellant’s third ground of error.

The appellant next contends that because the warnings given the appellant at the time of his arrest were inadequate under Miranda and under V.A.C.C.P., Art. 38.-22, his subsequent confession was inadmissible. Specifically, he contends that- he was not advised of his right to remain silent and of his right to the assistance of counsel prior to and during any questioning. Upon our review of the entire record in this case we conclude that, although the appellant was not advised of these rights in the precise words of Art. 38.22, he did receive the functional equivalent.

We have thus far discussed events before the appellant’s arrest. We now turn to events after his arrest. The testimony clearly shows that when the appellant’s fingerprints were found to match the fingerprints found in the deceased’s car, the appellant was formally arrested. At that point a reasonable person would have believed he was no longer free to leave.

Immediately after informing the appellant that he was under arrest, Napier gave the appellant a set of warnings. He then questioned the appellant for approximately three hours. During that time, Napier reduced to writing the appellant’s responses. Napier’s handwritten rendition of the appellant’s statement was then typed onto a form which contained at its top the warnings required by V.A.C.C.P., Art. 38.22.2 At about 1:20 a. m., two civilian employees of the Austin Police Department witnessed the *702appellant’s reading and signing of the two written statements. At about 4:30 a. m., after the appellant had consented to have his house searched and had accompanied Napier and another officer while they searched his house, the appellant was finally taken before a magistrate and was given the warnings required by V.A.C.C.P., Art. 15.17.

At the pre-trial hearing, Napier was questioned about the warnings that the appellant received:

“Q [By the prosecutor]: Prior to the time that these warnings were given [by the magistrate at 4:30 a. m.], had anybody else given George Edward Clark any warning?
“A [By Lt. Napier]: Yes.
“Q And when was that?
“A I gave him a complete peace officer’s warning at approximately 10:00 P.M. on the evening prior.
“Q Which would have been what day— March 5th?
“A Yes.
“Q At approximately 10:00 A.M.?
“A 10:00 P.M.
“Q At 10:00 P.M. you gave him the peace officer’s warning?
“A Yes, sir.
“Q All right, sir. Where did you get the peace officer’s warning you gave him?
“A Where did I get it?
“Q Yes, sir.
“A I did not read it — just from memory.
“Q Would you state the warning you gave Mr. Clark?
“A Exactly the statement.
“Q Would you state it the way you gave it to him at the time?
“A I will try as near as possible as I did at the time.
“Q Yes, sir.
“A I informed him, first of all, he was not required to make any statement to me or anyone else; number two, that he did have a right to have an attorney and, if he could not afford an attorney, he could have an attorney appointed for him by the Court. He was also informed that he did not have to give any handwriting specimen or take any polygraph examination, and that if in fact he decided to talk with us he could terminate any interview at any time he desired to do so. And he was also informed at that particular time there was not any charge, formal charge, filed against him; and, in the event there was one filed, he would be made aware of that.
“Q Did you advise him anything regarding making any statement to you?
“A If he did in fact give a statement, he was informed that that could be used in court against him.
“Q Lt. Napier, I hand you what has been marked for identification purposes as State’s Exhibit No. 3; have you seen that item before?
“A Yes, I have.
“Q Is that the typewritten copy of the handwritten statement that you made as a result of your conversation with Mr. Clark?
“A That is correct.
“Q And what is contained on the top of it — what is this?
“A It’s a typed warning form, very similar to the one administered by the Judge, and also the warning I gave the defendant prior to taking the statement.
“Q It has the magistrate’s warning on the top?
“A That is correct.”

At the same hearing, the officer was further questioned on cross-examination:

“Q Lt. Napier, I want to make sure I understand a couple of things you said fully. I believe it was your testimony that the first warning you gave to the defendant, the accused, George Clark was at 10:00 at the time that he made the statement; is that correct?
*703“A That was the first time that he was given a complete peace officer’s and magistrate’s warning, warning of his entire constitutional rights.
“Q Okay. Had he at any time before that, before 10:00, requested, inquired in any way as to whether he could have an attorney or what his rights were concerning an attorney?
“A Did he make any mention of an attorney; yes, he did.
“Q What was that mention?
“A He asked if in fact he had a right to an attorney, and he was informed that he did have, and he was further informed he could call any attorney he wanted to and I would furnish him with a phone book to obtain names. He did not make any further inquiry.
“Q Now, the warnings that you gave at 10:00, were those the warnings that are on the typed confession?
“A Yes.
“Q Was there any warning given before the handwritten confession, the handwritten statement that has been_
“A Both statements were taken after 10:00 when the warning was given

On re-direct examination at the same hearing, the following occurred:

“Q Lt. Napier, I got kind of lost in all the shuffle, but there was something you said earlier when you related the warning, the warning you gave the defendant at 10:00; you said you told him he had a right to have counsel, that he could terminate the interview at any time, that if he couldn’t afford an attorney that an attorney would be appointed for him by the Court, and that he could look in the phone book if he wanted one; is that correct?
“A A little out of context. What I said was, if he wanted an attorney, that he could have one at that time, and that I would furnish him with a phone book to call one. I further said if he could not afford an attorney, that arrangements could be made with the Court to appoint him an attorney.”

At trial, Napier was again asked about the warnings he gave the appellant:

“Q At any time did you read him a magistrate’s warning?
“A Was he given a warning?
“Q Yes, sir.
“A Yes, sir, at a later time he was given a peace officer’s warning.
“Q Approximately what time?
“A I would say right at 10:30 P.M., in that vicinity.
“Q All right, sir. And did you administer him such warning?
“A Yes, sir, I did.
* * % ⅜ * ⅜
“Q All right, sir. And I believe you said when you placed him under arrest, you gave him the peace officer’s warning?
“A Yes, sir, I did.
“Q Would you relate to the jury what you warned him?
“A First, like I said, I did inform him he was under arrest for suspicion of murder. I further informed him he did have the right to have an attorney, he had the right to have that attorney present at all times whether he was being interviewed by myself or anyone else. He was also told he did not have to make any statement, he did not have to take a polygraph examination, nor did he have to give a sample of his handwriting. He was also informed that if in fact he did decide to talk, he could at any time terminate any interview he had with myself or anyone else. In addition to that, he was informed if he felt he could not afford any attorney, that arrangements could be made through the court for him to be furnished with an attorney.
*704“Q Did you warn him anything concerning the use of any statement he might make?
“A Yes, sir. In reference to giving any statement he might give, he was told any such statement he made could and probably would be used in court against him.”

On this record, we conclude that the appellant was adequately advised of his right to remain silent and of his right to the assistance of counsel prior to and during any questioning. Although Napier’s initial testimony at the pre-trial hearing does not include the specific warning of the right to remain silent, in the context of the conversation and in light of his later testimony we conclude that the right to remain silent was conveyed by the warning that “if he decided to talk with us he could terminate any interview at any time he desired to do so.” To the parties, the coupling of the right “not to make a statement” with the right to “terminate any interview at any time” if the appellant “decided to talk with us” adequately conveyed the right to remain silent.

With regard to the right to the assistance of counsel prior to and during any questioning, the discussions which preceded the formal warnings at 10:00 p. m. included the offer by Napier of a phone book to call an attorney at that time. In addition, Napier’s trial testimony specifically included the statement that he had advised the appellant that he had the “right to have an attorney, he had the right to have that attorney present at all times whether he was being interviewed by myself or anyone else.” This adequately conveyed to the appellant the right to have an attorney present prior to and during any questioning.

Since we conclude that the appellant was warned of his rights in compliance with Art. 38.22 and Miranda, we overrule the appellant’s motion for rehearing. The simple practice of reading to a defendant the warnings set out in the statute would eliminate the problem of non-compliance with the precise warnings set out in Miranda. There may well be a case presented to us in which a police officer, attempting to give the warnings from memory, fails to adequately convey the required warnings. We might well have a different view of such a case, for, as this Court has made clear, the sufficiency of the warnings required by Miranda and Art. 38.22, and the voluntariness of the waiver of the rights protected by those warnings are two distinct and separate requirements which must be met for a confession to be admissible. Faulder v. State, 611 S.W.2d 630 (Tex.Cr.App.1979); Ochoa v. State, 573 S.W.2d 796 (Tex.Cr.App.1978). Without the predicate of proper warnings, even a voluntary confession is inadmissible.

For this reason we once again caution that the warnings required by Art. 38.22 should be read prior to any questioning. Alternatively, the defendant should be promptly taken before a magistrate to receive the warnings set out in Art. 15.17 prior to any questioning. Either procedure would eliminate the problem of non-compliance with the teachings of Miranda, and would reduce the time and energy expended by both trial courts and this Court in determining after the fact whether “close is good enough.”

The State’s motion for rehearing asks us to reform the appellant’s sentence to confinement for life under the provisions of V.A.C.C.P., Arts. 44.24 and 44.251. This we need not do. After we delivered our original opinion in this case, the Governor issued a proclamation which commuted this sentence to life imprisonment. Since the imposition of the death penalty is no longer possible, if there was no error in the guilt-innocence phase of the trial, the judgment will be affirmed. Rodriguez v. State, 626 S.W.2d 35 (Tex.Cr.App.1981); Wilder v. State, 623 S.W.2d 650 (Tex.Cr.App.1981); Adams v. State, 624 S.W.2d 568 (Tex.Cr.App.1981); Whan v. State, 485 S.W.2d 275 (Tex.Cr.App.1972). We now find it necessary to address the appellant’s remaining grounds of error which contend that there was error during the guilt-innocence phase of his trial.

*705The appellant complains of the admission at trial of photographs of the deceased. Nine photographs were of the deceased at the scene of her murder. Six photographs were of the deceased as she appeared just prior to the performance of an autopsy.

In Harrington v. State, 547 S.W.2d 621 (Tex.Cr.App.1977), we stated the general rule concerning the admission of photographs.

“If a photograph is competent, material and relevant to the issues on trial, the photograph will not be inadmissible because it is gruesome, unless it is offered solely to inflame the minds of the jury. If a verbal description of the body and the scene would be admissible, a photograph depicting the same is admissible. Only when the probative value of the photograph is very slight and the inflammatory aspects great will it be an abuse of discretion to admit the photographs. Martin v. State, 475 S.W.2d 265 (Tex.Cr. App.1972); Page v. State, 532 S.W.2d 341 (Tex.Cr.App.1976); Provost v. State, 514 S.W.2d 269 (Tex.Cr.App.1974).”

547 S.W.2d at 625-626.

Officer Thompson of the Austin Police Department testified that the nine photographs of the deceased at the scene of the murder accurately depicted the scene as he found it on the evening the deceased’s body was found. At the time the photographs were identified and offered into evidence, Thompson had already testified about what he had observed at the scene of the crime. The photographs were, therefore, admissible.

Dr. Bucklin performed the autopsy on the deceased. He identified the other six photographs as an accurate depiction of the deceased just prior to the autopsy. He then testified concerning the extent and nature of the deceased’s wounds.

The appellant relies upon Terry v. State, 491 S.W.2d 161 (Tex.Cr.App.1973), and Goss v. State, 549 S.W.2d 404 (Tex.Cr.App.1978). Both cases are inapposite. In Terry, the photographs which were held to be inadmissible were taken after an autopsy had been performed. They depicted “massive mutilation of the subject matter caused by the surgery in performing the autopsy.” 491 S.W.2d at 164. In the present case, the photographs were taken before the surgical procedures were performed.

In Goss, certain pictures taken in connection with an autopsy were held to be inadmissible because they had not been identified as an accurate portrayal of facts relevant to the issues involved in the autopsy. In other words, the proper predicate for their admission had not been laid.

In Bailey v. State, 532 S.W.2d 316 (Tex.Cr.App.1975), we upheld the admission of photographs which accurately depicted the deceased before an autopsy was performed. We held:

“Terry [v. State, supra] cannot be construed to prevent the admission of relevant photographs merely because the deceased has been removed to clinical surroundings. Cf. Knoppa v. State, Tex.Cr. App., 505 S.W.2d 802. Only where the results of surgery have obfuscated the results of the crime will otherwise accurate depictions be inadmissible. The photographs here in question illustrated and clarified the doctor’s description of the injuries, and no error is reflected in their admission. Provost v. State, Tex.Cr.App., 514 S.W.2d 269.”

532 S.W.2d at 321-322.

We find Bailey to be controlling. The photographs of the deceased, which were properly authenticated by the doctor who performed the autopsy, and which depicted the deceased as she looked before the doctor performed the autopsy, were admissible. The ground of error is overruled.

Finally, the appellant contends that the trial court erred in admitting hearsay testimony from one witness during the guilt-innocence phase of the trial. During the State’s case-in-chief, Brenda Hofstad was called as a witness. She testified that on the night before the murder she was working in a gift shop in the shopping center from which the deceased was abducted. The appellant had entered her shop and, *706over the course of about an hour’s time, had tried to get her to go out with him and go drinking or smoke “pot”. When she refused, he left the store in a very “bad mood”. Hofstad was then asked by the State whether she had been contacted by a private investigator shortly after the murder occurred. She replied that she had. The prosecutor then asked, “Did that investigator relate who he was working for?” After the trial court overruled the appellant’s objection that the answer would be hearsay, Hofstad testified that the investigator told her he worked for the appellant.

In light of the overwhelming evidence of the appellant’s guilt in this case, we conclude that error, if any, in the admission of this testimony was harmless beyond a reasonable doubt. The ground of error is overruled.

We have now found that there was no reversible error in the guilt-innocence phase of the appellant’s trial. The judgment is now affirmed.

. Our rendition of the facts is based upon the appellant’s confession, and upon the two hearings held in this case concerning the admissibility of the confession.

. The typewritten form stated:

“At 10:00 pm AM/PM, on the 5th day of March. 1978. at 700 E. 7th. prior to making the following statement, I, George Edward Clark was warned by Lt. Roger Napier, to whom this statement is made, that: (1) I have the right to have a lawyer present to advise me prior to any questioning and during any questioning concerning the accusation made against me, (2) that if I am unable to employ a lawyer I have the right to have a lawyer appointed to counsel with me prior to and during my questioning, (3) that I have the right to terminate this interview at any time, and (4) that I have the right to remain silent and not make any statement at all and that any statement I make may be used in evidence against me at my trial.
“I fully understand all of my rights as stated above but I do hereby freely and voluntarily state that I do not want a lawyer and wish to make the following statement in writing without any threats or promises of any kind having been made to me:”